Exhibit 2.3
Execution Copy
ASSET PURCHASE AGREEMENT
THIS AGREEMENT made the 23rd day of September, 2004,
B E T W E E N:
CELESTICA INTERNATIONAL INC.,
a corporation existing under the laws of the Province of
Ontario,
(hereinafter referred to as "Celestica International"),
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CELESTICA CORPORATION,
a corporation existing under the laws of the State of
Delaware,
(hereinafter referred to as "Celestica Corp"),
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CELESTICA (THAILAND) LIMITED,
a corporation existing under the laws of the Kingdom of
Thailand,
(hereinafter referred to as "Celestica Thai"),
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DYNAMO ACQUISITION CORP.,
a existing under the laws of the State of Delaware,
(hereinafter referred to as the "Purchaser").
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CELESTICA INC.,
a corporation existing under the laws of the Province of
Ontario,
(hereinafter referred to as "Celestica Parent"),
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C&D TECHNOLOGIES, INC.,
a corporation existing under the laws of the State of
Delaware,
(hereinafter referred to as "C&D Parent").
THIS AGREEMENT WITNESSES THAT in consideration of the respective
covenants, agreements, representations, warranties and indemnities of the
parties herein contained and for other good and valuable consideration (the
receipt and sufficiency of which are acknowledged by each party), the parties
agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions.
For the purposes of this Agreement, unless the context otherwise
requires, the following terms shall have the respective meanings set out below
and grammatical variations of such terms shall have corresponding meanings:
"Affiliate" for the purposes hereof an entity (the "first entity") is the
Affiliate of another entity (the "second entity") where the second entity
controls the first entity, or the first entity controls the second entity
or both entities are controlled by the same person or entity and for these
purposes "control" is the power whether by contract or ownership of equity
interests to select a majority of the board of directors or other
supervisory management authority of an entity whether directly or
indirectly through a chain of entities that are "controlled" within the
foregoing meaning;
"Audited Closing Date Statements" has the meaning ascribed to it in the
Purchase Price Adjustment Agreement;
"Apportioned Obligations" has the meaning set out in Section 6.3(c);
"Business" means the business collectively carried on by the Power Vendors
through their respective power operations on the date hereof, consisting
of the engineering, development, design, promotion, marketing,
distribution and sale of Power Products to original equipment
manufacturers and other customers, including, without limitation, the
"build-to-print" business, consisting of the facilitation and management,
on behalf of the Power Vendors' customers, of the manufacture (including
applicable testing) by third party contract manufacturers, of such
customers' Power Products in accordance with such customers'
specifications and without any design contribution from the Power Vendors,
or any of them, but for certainty excluding the manufacture or repair of
Power Products under such "build-to-print" arrangement, it being
understood and agreed by the parties that none of the Power Vendors
conducts the Business in its entirety and each only conducts a part of the
Business such that collectively they conduct the Business;
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"Business Day" means a day, other than a Saturday or Sunday on which banks
are open for business in New York, New York;
"Canadian Drop-Down Agreement" means the agreement to be entered into on
the Closing Date between Celestica International and Dynamo Power System
(Canada) ULC pursuant to which Celestica International will transfer
certain of the assets relating to the Business to Dynamo Power Systems
(Canada) ULC;
"Canadian Purchase Agreement" means the share purchase agreement dated
September 23, 2004 between C&D Power Systems (Canada) ULC, C&D Parent,
Celestica International Inc. and Celestica Parent;
"Claim" has the meaning set out in Section 9.4;
"Closing" means the closing of the purchase and sale of the Purchased
Assets contemplated hereby;
"Closing Date" means September 30, 2004 or such other date as may be
mutually agreed upon by the Vendors and the Purchaser;
"Code" means the Internal Revenue Code of 1986, as amended;
"Corp Closing Payment" has the meaning set out in Section 3.2;
"Corp Fixed Assets" means the Corp Purchased Assets that are described in
Sections 2.2(a) and (c) and that are located at the manufacturing facility
operated by Celestica Suzhou Technology Ltd. in Suzhou, PRC on the date
hereof;
"Corp Purchased Assets" has the meaning set out in Section 2.2;
"Corp Purchase Price" has the meaning set out in Section 3.2;
"Direct Claim" has the meaning set out in Section 9.4;
"Effective Time" means the "Effective Time" as defined in the Canadian
Purchase Agreement;
"Encumbrance" means any encumbrance, lien, charge, hypothec, pledge,
mortgage, title retention agreement, security interest of any nature,
adverse claim or exception;
"Governmental Entity" means any federal, provincial, local, municipal,
foreign or other government, and any body lawfully exercising any
administrative, judicial, legislative or regulatory authority or power;
"Indemnified Party" has the meaning set out in Section 9.4;
"Indemnifying Party" has the meaning set out in Section 9.4;
"Initial Term" has the meaning set out under the Supply Agreement;
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"International Closing Payment" has the meaning set out in Section 3.1;
"International Fixed Assets" means the International Purchased Assets
described in Sections 2.1(a) and (b) and that are located at the
manufacturing facility operated by Celestica Suzhou Technology Ltd. in
Suzhou, PRC on the date hereof;
"International Purchased Assets" has the meaning set out in Section 2.1;
"International Purchase Price" has the meaning set out in Section 3.1;
"Laws" means any applicable laws (including common law), statutes,
by-laws, rules, regulations, orders, ordinances, protocols, codes,
guidelines, treaties, policies, notices, directions and judicial,
arbitral, administrative, ministerial or departmental judgements, awards
or other requirements of any Governmental Entity, in each case which have
the force of law;
"Losses", in respect of any matter, means all losses, damages,
liabilities, penalties and expenses (including reasonable legal fees and
out-of-pocket disbursements) arising as a result of such matter (but
excluding any lost profits or other consequential or indirect losses);
"Material Adverse Effect", with regard to an entity, means a material
adverse effect on the business, financial condition or results of
operations of the entity;
"Other Purchase Agreements" means, collectively, the U.S. Purchase
Agreement, the Canadian Purchase Agreement, the Shanghai Purchase
Agreement and the Suzhou Purchase Agreement;
"PRC" means the People's Republic of China;
"Permitted Encumbrances" means:
(i) liens for taxes, assessments and governmental charges due and
being contested in good faith and diligently by appropriate
proceedings (and for the payment of which adequate provision
has been made); and
(ii) inchoate liens claimed or held by any Governmental Entity or a
public utility in respect of the payment of taxes or utilities
not yet due and payable;
"Post-Closing Tax Period" has the meaning set out in Section 6.3(c);
"Power Products" means power supply, regulation and conversion products
excluding products (or components of products) whose principal function or
use is not power supply, regulation or conversion but which contain or
incorporate power circuitry, power supply, regulation or conversion
components, including without limitation, printers and communications
circuit boards and servers;
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"Pre-Closing Tax Period" has the meaning set out in Section 6.3(c);
"Power Vendors" means, collectively, Celestica International, Celestica
Corp and Celestica Electronics (Shanghai) Co. Ltd.;
"Purchase Price Adjustment Agreement" means the agreement dated September
23, 2004 among the Vendors, Celestica Parent, Celestica Electronics
(Shanghai) Co. Ltd., Celestica Suzhou Technology Ltd., the Purchaser, C&D
Power Systems (Canada) ULC, C&D Parent and Datel Electronic Technology
(Shanghai) Co., Ltd.;
"Purchased Assets" means, collectively, the International Purchased
Assets, the Corp Purchased Assets and the Thai Purchased Assets;
"Shanghai Purchase Agreement" means the asset purchase agreement dated
September 23, 2004 between Celestica Electronics (Shanghai) Co. Ltd.,
Celestica Parent, Datel Electronics Technology (Shanghai) Co., Ltd. and
C&D Parent;
"Subsidiary" has the meaning ascribed to that term in the Business
Corporations Act (Ontario), as in effect on the date hereof;
"Supply Agreement" means the Agreement for Manufacture to be entered into
on the Closing Date between Celestica Hong Kong Limited and Dynamo Power
System (USA) LLC;
"Suzhou Purchase Agreement" means the inventory purchase agreement dated
September 23, 2004 between Celestica Suzhou Technology Ltd., Celestica
Parent, the Purchaser and C&D Parent;
"Tax Refund" has the meaning set out under Section 3.5;
"Tax Return" means "Tax Return" as defined in the Canadian Purchase
Agreement;
"Taxes" means all federal, provincial, state, local and foreign taxes,
governmental premiums and fees, levies and duties, including, but not
limited to income tax, profits tax, corporation tax, sales and use tax,
payroll tax, worker's compensation levy, capital tax, stamp duty, real and
personal property tax, land transfer tax, customs or excise duty, excise
tax, value added tax on goods sold or services rendered, sales tax,
harmonized sales tax, surtax, withholding tax, employer health tax,
payroll tax, education, social security and employment insurance charges,
health insurance and government pension plan premiums or contributions and
any interest, fines, additions to tax and penalties thereon, whether
disputed or not;
"Thai Closing Payment" has the meaning set out in Section 3.3;
"Thai Purchased Assets" has the meaning set out in Section 2.3;
"Thai Purchase Price " has the meaning set out in Section 3.3;
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"Third Party Claim" has the meaning set out in Section 9.3;
"Time of Closing" means 10:00 a.m. (Toronto time) on the Closing Date or
such other time as the Vendors and the Purchaser may agree;
"Transaction Taxes" has the meaning set out in Section 3.5;
"U.S. Drop-Down Agreement" means the agreement to be entered into on the
Closing Date between Celestica Corp and Dynamo Power System (USA) LLC
pursuant to which Celestica Corp will transfer certain of the assets
relating to the Business to Dynamo Power Systems (USA) LLC;
"U.S. Purchase Agreement" means the LLC interest purchase agreement dated
September 23, 2004 between C&D Parent, Celestica Corporation and Celestica
Parent; and
"Vendors" means, collectively, Celestica International, Celestica Corp and
Celestica Thai.
1.2 Currency.
Unless otherwise indicated, all dollar amounts in this Agreement are
expressed in lawful currency of the United States of America.
1.3 Sections and Headings.
The division of this Agreement into sections and the insertion of
headings are for convenience of reference only and shall not affect the
interpretation of this Agreement. Unless otherwise indicated, any reference in
this Agreement to a Section or Schedule refers to the specified Section of or
Schedule to this Agreement and any reference in this Agreement to a Section
shall include a subsection of such Section, as applicable.
1.4 Number, Gender and Persons.
In this Agreement, words importing the singular number only shall
include the plural and vice versa, words importing gender shall include all
genders and words importing persons shall include individuals, corporations,
partnerships, associations, trusts, unincorporated organizations, governmental
bodies and other legal or business entities of any kind whatsoever.
1.5 Entire Agreement.
This Agreement, together with the Purchase Price Adjustment
Agreement, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether written or oral. There are no conditions,
covenants, agreements, representations, warranties or other provisions, express
or implied, collateral, statutory or otherwise, relating to the subject matter
hereof except as herein provided.
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1.6 Applicable Law.
This Agreement shall be construed, interpreted and enforced in
accordance with, and the respective rights and obligations of the parties shall
be governed by, the laws of the State of New York without regard to conflicts of
law principles, and each party hereby irrevocably and unconditionally submits to
the non-exclusive jurisdiction of the federal District Court for the Southern
District of New York and, if such court does not accept jurisdiction, of the
Court of The State of New York sitting in the Borough of Manhattan in New York
City, and all courts competent to hear appeals therefrom.
1.7 Severability.
If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable in any respect,
such determination shall not impair or affect the validity, legality or
enforceability of the remaining provisions hereof, and each provision is hereby
declared to be separate, severable and distinct.
1.8 Successors and Assigns.
This Agreement shall enure to the benefit of and shall be binding on
and enforceable by the parties and, where the context so permits, their
respective successors and permitted assigns. Neither of the parties may assign
any of its rights or obligations hereunder without the prior written consent of
the other parties.
1.9 Amendment and Waivers.
No amendment or waiver of any provision of this Agreement shall be
binding on any party unless consented to in writing by such party. No waiver of
any provision of this Agreement shall constitute a waiver of any other
provision, nor shall any waiver constitute a continuing waiver unless otherwise
provided.
1.10 Schedules.
The following Schedules are attached to and form part of this
Agreement:
Schedule 2.1(a) - International Fixed Assets
Schedule 2.2(a) - Corp Fixed Assets
Schedule 2.2(b) - Corp Inventories
Schedule 2.3(a) - Thai Inventories
Schedule 3.1 - Allocation of International Purchase Price
Schedule 3.2 - Allocation of Corp Purchase Price
Schedule 3.3 - Allocation of Thai Purchase Price
Schedule 4.2(h) - Quality of Corp Inventories
Schedule 4.3(h) - Quality of Thai Inventories
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ARTICLE 2
PURCHASE AND SALE OF PURCHASED ASSETS
2.1 Transfer of International Purchased Assets.
Subject to the provisions of this Agreement, Celestica International
hereby agrees to sell, assign and transfer to the Purchaser and the Purchaser
hereby agrees to purchase from Celestica International, effective as of the
Effective Time, all right, title and interest of Celestica International in and
to the following property and assets (collectively, the "International Purchased
Assets"):
(a) Machinery and Equipment. All machinery, test equipment, jigs, dies,
tools, handling equipment and other equipment owned by Celestica
International on the date hereof and used by Celestica International
in the conduct of the Business (other than such machinery and
equipment which is to be transferred to Dynamo Power System (Canada)
ULC pursuant to the Canadian Drop-Down Agreement), including without
limitation, the machinery, test equipment, jigs, dies, tools,
handling equipment and other equipment listed in Schedule 2.1(a),
together with all rights of Celestica International under
manufacturer's warranties, if any, with respect to such machinery
and equipment; and
(b) Furniture and Fixtures. The furniture, fixtures and leasehold
improvements listed in Schedule 2.1(a).
2.2 Transfer of Corp Purchased Assets
Subject to the provisions of this Agreement, Celestica Corp hereby
agrees to sell, assign and transfer to the Purchaser and the Purchaser hereby
agrees to purchase from Celestica Corp, effective as of the Effective Time, all
right, title and interest of Celestica Corp in and to the following property and
assets (collectively, the "Corp Purchased Assets"):
(a) Machinery and Equipment. All machinery, test equipment, jigs, dies,
tools, handling equipment and other equipment owned by Celestica
Corp on the date hereof and used by Celestica Corp in the conduct of
the Business (other than such machinery and equipment which is to be
contributed to Dynamo Power System (USA) LLC pursuant to the U.S.
Drop-Down Agreement), including without limitation, the machinery,
test equipment, jigs, dies, tools, handling equipment and other
equipment listed in Schedule 2.2(a), together with all rights of
Celestica Corp under manufacturer's warranties, if any, with respect
to such machinery and equipment;
(b) Inventories. The inventories of raw materials, work-in-process,
finished goods, replacement parts, and packing and shipping supplies
owned by Celestica Corp on the date hereof and used by Celestica
Corp in the conduct of the Business (other than such inventories to
be contributed to Dynamo Power System (USA) LLC pursuant to the U.S.
Drop-Down Agreement), including without limitation, to the extent
not sold by Celestica Corp in the ordinary course of the Business
prior to
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the Closing Date, the raw materials, work-in-process, finished goods
and replacement parts listed in Schedule 2.2(b); and
(c) Furniture and Fixtures. The furniture, fixtures and leasehold
improvements listed in Schedule 2.2(a).
2.3 Transfer of Thai Purchased Assets.
Subject to the provisions of this Agreement, Celestica Thai hereby
agrees to sell, assign and transfer to the Purchaser and the Purchaser hereby
agrees to purchase from Celestica Thai, effective as of the Effective Time, all
right, title and interest of Celestica Thai in and to the following property and
assets (collectively, the "Thai Purchased Assets"):
(a) Inventories. The inventories of raw materials, work-in-process,
finished goods, replacement parts, and packing and shipping supplies
owned by Celestica Thai on the date hereof and used by Celestica
Thai in the conduct of the Business, including without limitation,
to the extent not sold by Celestica Thai in the ordinary course of
the Business prior to the Closing Date, the raw materials,
work-in-process, finished goods and replacement parts listed in
Schedule 2.3(a).
ARTICLE 3
PURCHASE PRICE
3.1 Satisfaction of Purchase Price for International Purchased Assets.
The aggregate purchase price payable by the Purchaser to Celestica
International for the International Purchased Assets (the "International
Purchase Price") shall be $53,235 (the "International Closing Payment"), being
the estimated aggregate fair market value of the International Purchased Assets
as at the date hereof, as such amount may be adjusted pursuant to the Purchase
Price Adjustment Agreement. At the Time of Closing, the Purchaser shall pay the
International Closing Payment to Celestica International on account of the
International Purchase Price by certified cheque or wire transfer of immediately
available funds to an account designated no later than three Business Days prior
to the Closing Date by Celestica International. The International Purchase Price
shall be allocated among the International Purchased Assets in accordance with
Schedule 3.1, and Celestica International and the Purchaser agree to report the
purchase and sale of the International Purchased Assets for all state, federal,
provincial and local tax purposes in a manner consistent with such allocation.
3.2 Satisfaction of Purchase Price for Corp Purchased Assets.
The aggregate purchase price payable by the Purchaser to Celestica
Corp for the Corp Purchased Assets (the "Corp Purchase Price") shall be
$7,156,597 (the "Corp Closing Payment"), being the estimated aggregate fair
market value of the Corp Purchased Assets as at the date hereof, as such amount
may be adjusted pursuant to the Purchase Price Adjustment Agreement. At the Time
of Closing, the Purchaser shall pay the Corp Closing Payment to Celestica Corp
on account of the Corp Purchase Price by certified cheque or wire transfer of
immediately available funds to an account designated no later than three
Business Days prior to the Closing Date by Celestica Corp. The Corp Purchase
Price shall be allocated among the Corp
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Purchased Assets in accordance with Schedule 3.2, and Celestica Corp and the
Purchaser agree to report the purchase and sale of the Corp Purchased Assets for
all state, federal, provincial and local tax purposes in a manner consistent
with such allocation.
3.3 Satisfaction of Purchase Price for Thai Purchased Assets.
The aggregate purchase price payable by the Purchaser to Celestica
Thai for the Thai Purchased Assets (the "Thai Purchase Price") shall be $902,164
(the "Thai Closing Payment"), being the estimated aggregate fair market value of
the Thai Purchased Assets as at the date hereof, as such amount may be adjusted
pursuant to the provisions of the Purchase Price Adjustment Agreement. At the
Time of Closing, the Purchaser shall pay the Thai Closing Payment to Celestica
Thai on account of the Thai Purchase Price by certified cheque or wire transfer
of immediately available funds to an account designated no later than three
Business Days prior to the Closing Date by Celestica Thai. The Thai Purchase
Price shall be allocated among the Thai Purchased Assets in accordance with
Schedule 3.3, and Celestica Thai and the Purchaser agree to report the purchase
and sale of the Thai Purchased Assets for all state, federal, provincial and
local tax purposes in a manner consistent with such allocation.
3.4 No Assumption of Liabilities.
For certainty, the Purchaser assumes no obligations or liabilities
of the Vendors, or any of them.
3.5 Transfer Taxes.
(a) Subject to the obligation to contribute of Celestica Corp or Celestica
International described in (b) or (c) below, the Purchaser shall be liable for
and shall pay all federal, provincial, state, local and foreign sales taxes and
all other similar taxes, duties, fees or other like charges (but, for greater
certainty, not including any Taxes on income or profits) of any jurisdiction
("Transaction Taxes") payable in connection with the purchase by the Purchaser
of the International Purchased Assets, the Corp Purchased Assets and the Thai
Purchased Assets.
(b) Celestica Corp and the Purchaser agree that with respect to
Transaction Taxes payable in connection with the purchase by the Purchaser of
the Corp Purchased Assets, Celestica Corp shall contribute an amount not
exceeding the lesser of
(i) 50% of such Transaction Taxes; and
(ii) US$150,000.00
which contribution may be satisfied by the payment to or, at the direction of
the Purchaser on receipt of evidence satisfactory to Celestica Corp acting
reasonably, of Purchaser's obligation to pay such Transaction Taxes, or where
Celestica Corp is obliged to remit any Transaction Taxes directly to any
Governmental Entity, by such direct remittance with receipt of same provided to
Purchaser.
(c) Celestica International and the Purchaser agree that with respect to
Transaction Taxes payable in connection with the purchase by the Purchaser of
the International Purchased
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Assets, Celestica International shall contribute an amount not exceeding an
amount equal to the positive difference, if any, between
(i) the lesser of (x) 50% of such Transaction Taxes; and (y)
US$150,000.00; and
(ii) the aggregate amount of Celestica Corp's contributions
pursuant to Section 3.5(b) above,
which contribution of Celestica International may be satisfied by the payment to
or, at the direction of the Purchaser on receipt of evidence satisfactory to
Celestica International acting reasonably, of the Purchaser's obligation to pay
such Transaction Taxes, or where Celestica International is obliged to remit any
Transaction Taxes directly to any Governmental Entity, by such direct remittance
with receipt of same provided to Purchaser.
(d) Any contributions by Celestica International or Celestica Corp to the
Purchaser under this Section 3.5 shall, solely for Tax purposes and to the
extent permitted by Law, be treated as an adjustment to the Purchaser's
acquisition cost of assets acquired hereunder and, for greater certainty, shall
not be treated as an adjustment to the quantum of the Corp Purchase Price or the
International Purchase Price for purposes of this Agreement or any other
agreement contemplated hereunder.
(e) To the extent that the Purchaser receives from a Governmental Entity
to which Transaction Taxes were paid a rebate, refund, credit or other form of
offset to Taxes ("Tax Refund") in respect of which Celestica Corp or Celestica
International contributed under this Section 3.5, the Purchaser shall pay to
such Celestica party an amount equal to 50% of such Tax Refund; provided,
however, that the Tax Refund amounts payable to the Celestica parties by the
Purchaser hereunder shall in the aggregate not exceed US$150,000.
(f) Any payments by the Purchaser of Tax Refund amounts under this Section
3.5 shall, solely for Tax purposes and to the extent permitted by Law, be
treated as an adjustment to the Purchaser's acquisition cost of assets acquired
hereunder and, for greater certainty, shall not be treated as an adjustment to
the quantum of the Corp Purchase Price or the International Purchase Price for
purposes of this Agreement or any other agreement contemplated hereunder.
3.6 Right to Withhold.
Purchaser shall be entitled to deduct and withhold from
consideration otherwise payable pursuant to this Agreement such amounts as the
Purchaser is required to deduct and withhold under the Code, or any provision of
state, local, or foreign Tax law after giving effect to any applicable income
tax treaty. The Purchaser shall use reasonable efforts to notify Vendor of its
intention to make any such withholding at least two Business Days prior to
Closing; provided, however, that the Purchaser shall be entitled to make such
withholding in any event. The Purchaser shall remit any amount so withheld to
the relevant tax authority no later than the earlier of (i) the applicable due
date and (ii) 10 Business Days after the date of payment to the Purchaser in
respect of which the withholding was made. The Purchaser shall timely furnish to
the Vendor the original or certified copy of receipt evidencing the remittance.
To the extent
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amounts are so withheld, such withheld amounts shall be treated for all purposes
hereto as having been paid to the Vendor.
3.7 Further Assurances.
From time to time subsequent to the date hereof, each party to this
Agreement covenants and agrees that it will at all times, at the expense of the
requesting party, promptly execute and deliver all such documents, including,
without limitation, all such additional conveyances, transfers, consents and
other assurances and do all such other acts and things as the other party,
acting reasonably, may from time to time request be executed or done in order to
better evidence or perfect or effectuate any provision of this Agreement or of
any agreement or other document executed pursuant to this Agreement or any of
the respective obligations intended to be created hereby or thereby.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE VENDORS
4.1 Representations and Warranties of Celestica International.
Celestica International represents and warrants to the Purchaser as
follows and acknowledges that the Purchaser is relying on such representations
and warranties in connection with its purchase of the International Purchased
Assets, regardless of any independent investigation made by the Purchaser:
(a) Existence and Capacity. Celestica International is validly existing
under the laws of the Province of Ontario and has the corporate
power to enter into this Agreement and to perform its obligations
hereunder;
(b) Authorization. This Agreement has been duly authorized, executed and
delivered by Celestica International and is a legal, valid and
binding obligation of Celestica International, enforceable against
Celestica International by the Purchaser in accordance with its
terms, except as enforcement may be limited by bankruptcy,
insolvency and other laws affecting the rights of creditors
generally and except that equitable remedies may be granted only in
the discretion of a court of competent jurisdiction;
(c) No Other Agreements to Purchase. No person other than the Purchaser
has any written or oral agreement or option or any right or
privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option for the purchase or acquisition from
Celestica International of any of the International Purchased
Assets;
(d) Ownership of Purchased Assets. The International Purchased Assets
are owned beneficially by Celestica International with a good and
marketable title thereto, free and clear of all Encumbrances, other
than Permitted Encumbrances.
(e) No Violation. The execution and delivery of this Agreement by
Celestica International and the consummation by Celestica
International of the transaction
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of purchase and sale of the International Purchased Assets herein
provided for do not result in the violation by Celestica
International of or conflict with:
(i) any provision of the constating documents or by-laws or
resolutions of the board of directors (or any committee
thereof) or shareholders of Celestica International;
(ii) any judgement, decree, order or award of any court,
governmental body or arbitrator having jurisdiction over
Celestica International; or
(iii) any Law applicable to Celestica International;
(f) Consents and Approvals. There is no requirement to make any filing
with, give any notice to or to obtain any licence, permit,
certificate, registration, authorization, consent or approval of,
any governmental or regulatory authority as a condition to the
lawful consummation by Celestica International of the transaction of
purchase and sale of the International Purchased Assets contemplated
by this Agreement except for the filings, notifications, licences,
permits, certificates, registrations, consents and approvals
described in Schedule 4.1(f) or which relate solely to the identity
of the Purchaser or the nature of any business carried on by the
Purchaser in respect of which no representation or warranty is
provided herein; and
(g) Condition of Assets. All the property and assets listed in Schedule
2.1(a) are in operating condition, having regard to the use and age
thereof, except only for reasonable wear and tear.
4.2 Representations and Warranties of Celestica Corp.
Celestica Corp represents and warrants to the Purchaser as follows
and acknowledges that the Purchaser is relying on such representations and
warranties in connection with its purchase of the Corp Purchased Assets,
regardless of any independent investigation made by the Purchaser:
(a) Existence and Capacity. Celestica Corp is validly existing under the
laws of the State of Delaware and has the corporate power to enter
into this Agreement and to perform its obligations hereunder;
(b) Authorization. This Agreement has been duly authorized, executed and
delivered by Celestica Corp and is a legal, valid and binding
obligation of Celestica Corp, enforceable against Celestica Corp by
the Purchaser in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency and other laws affecting
the rights of creditors generally and except that equitable remedies
may be granted only in the discretion of a court of competent
jurisdiction;
(c) No Other Agreements to Purchase. No person other than the Purchaser
has any written or oral agreement or option or any right or
privilege (whether by law, pre-
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emptive or contractual) capable of becoming an agreement or option
for the purchase or acquisition from Celestica Corp of any of the
Corp Purchased Assets;
(d) Ownership of Purchased Assets. The Corp Purchased Assets are owned
beneficially by Celestica Corp with a good and marketable title
thereto, free and clear of all Encumbrances, other than Permitted
Encumbrances.
(e) No Violation. The execution and delivery of this Agreement by
Celestica Corp and the consummation by Celestica Corp of the
transaction of purchase and sale of the Corp Purchased Assets herein
provided for do not result in the violation by Celestica Corp of or
conflict with:
(i) any provision of the constating documents or by-laws or
consents of the board of directors (or any committee thereof)
or shareholders of Celestica Corp;
(ii) any judgement, decree, order or aware of any court,
governmental body or arbitrator having jurisdiction over
Celestica Corp; or
(iii) any Law applicable to Celestica Corp;
(f) Consents and Approvals. There is no requirement to make any filing
with, give any notice to or to obtain any licence, permit,
certificate, registration, authorization, consent or approval of,
any governmental or regulatory authority as a condition to the
lawful consummation by Celestica Corp of the transaction of purchase
and sale of the Corp Purchased Assets contemplated by this Agreement
except for the filings, notifications, licences, permits,
certificates, registrations, consents and approvals described in
Schedule 4.2(f) or which relate solely to the identity of the
Purchaser or the nature of any business carried on by the Purchaser
in respect of which no representation or warranty is provided
herein;
(g) Condition of Assets. All the property and assets listed in Schedule
2.2(a) are in operating condition, having regard to the use and age
thereof, except only for reasonable wear and tear; and
(h) Inventories. Except as set out in Schedule 4.2(h), the raw
materials, work-in-process and finished goods inventories described
in Section 2.2(b) are of a quality and quantity that is useable or
saleable in the ordinary course of the Business are fit for the
purposes for which they are intended (except to the extent, if any,
written down to net realizable value on the books of account of
Celestica Corp) and are carried on the books of Celestica Corp, and
will be reflected in the Audited Closing Date Statements for the
transaction of purchase and sale contemplated hereunder, at the
lower of cost and net realizable value. All such inventories are
labelled and stored in compliance in all material respects with
applicable Laws.
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4.3 Representations and Warranties of Celestica Thai.
Celestica Thai represents and warrants to the Purchaser as follows
with and acknowledges that the Purchaser is relying on such representations and
warranties in connection with its purchase of the Thai Purchased Assets,
regardless of any independent investigation made by the Purchaser:
(a) Existence and Capacity. Celestica Thai is validly existing under the
laws of the Kingdom of Thailand and has the corporate power to enter
into this Agreement and to perform its obligations hereunder;
(b) Authorization. This Agreement has been duly authorized, executed and
delivered by Celestica Thai and is a legal, valid and binding
obligation of Celestica Thai, enforceable against Celestica Thai by
the Purchaser in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency and other laws affecting
the rights of creditors generally and except that equitable remedies
may be granted only in the discretion of a court of competent
jurisdiction;
(c) No Other Agreements to Purchase. No person other than the Purchaser
has any written or oral agreement or option or any right or
privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option for the purchase or acquisition from
Celestica Thai of any of the Thai Purchased Assets;
(d) Ownership of Purchased Assets. The Thai Purchased Assets are owned
beneficially by Celestica Thai with a good and marketable title
thereto, free and clear of all Encumbrances, other than Permitted
Encumbrances;
(e) No Violation. The execution and delivery of this Agreement by
Celestica Thai and the consummation by Celestica Thai of the
transaction of purchase and sale of the Purchased Assets herein
provided for do not result in the violation by Celestica Thai of or
conflict with:
(i) any provision of the constating documents or by-laws or
resolutions (or the equivalent thereof) of the board of
directors (or any committee thereof) or shareholders of
Celestica Thai;
(ii) any judgement, decree, order or aware of any court,
governmental body or arbitrator having jurisdiction over
Celestica Thai; or
(iii) any Law applicable to Celestica Thai;
(f) Consents and Approvals. There is no requirement to make any filing
with, give any notice to or to obtain any licence, permit,
certificate, registration, authorization, consent or approval of,
any governmental or regulatory authority as a condition to the
lawful consummation by Celestica Thai of the transaction of purchase
and sale of the Thai Purchased Assets contemplated by this Agreement
except for the filings, notifications, licences, permits,
certificates, registrations, consents and approvals described in
Schedule 4.3(f) or which relate solely to the
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identity of the Purchaser or the nature of any business carried on
by the Purchaser in respect of which no representation or warranty
is provided herein;
(g) Condition of Assets. All the property and assets listed in Schedule
2.3(a) are in operating condition, having regard to the use and age
thereof, except only for reasonable wear and tear;
(h) Inventories. Except as set out in Schedule 4.3(h), the raw
materials, work-in-process and finished goods inventories described
in Section 2.3(a) are of a quality and quantity that is useable or
saleable in the ordinary course of the Business, are fit for the
purpose for which they are intended (except to the extent, if any,
written down to net realizable value on the books of account of
Celestica Thai) and are carried on the books of Celestica Thai and
will be reflected in the Audited Closing Date Statements for the
transaction of purchase and sale contemplated hereunder, at the
lower of cost and net realizable value. All such inventories are
labelled and stored in compliance in all material respects with
applicable Laws;
(i) Insurance. Celestica Thai has the Thai Purchased Assets insured
against loss or damage by all insurable hazards or risks on a
replacement cost basis and such insurance coverage will be continued
in full force and effect to and including the Time of Closing.
Celestica Thai is not in default with respect to any of the
provisions contained in any such insurance policy and has not failed
to give any notice or present any claim under any such insurance
policy in a due and timely fashion, except where such default would
not, either individually or collectively with such other defaults,
reasonably be expected to have a Material Adverse Effect; and
(j) Compliance with Laws. Celestica Thai has complied in all material
respects, and in accordance with customary business practice in the
local jurisdiction, with the laws applicable to its ownership and
operation of the Thai Purchased Assets.
4.4 Survival of Representations and Warranties of the Vendors.
The representations and warranties of the Vendors contained in this
Agreement shall survive the closing of the transactions contemplated hereby
until March 31, 2006, unless a bona fide notice of a claim shall have been made
in writing before such date, in which case the representation and warranty to
which such notice applies shall survive in respect of that claim until the final
determination or settlement of the claim, and, notwithstanding such closing nor
any investigation made by or on behalf of the Purchaser, shall continue in full
force and effect for the benefit of the Purchaser during such period, except
that:
(a) the representations and warranties set out in Sections 4.1(a),
4.1(b), 4.1(d), 4.2(a), 4.2(b), 4.2(d), 4.3(a), 4.3(b) and 4.3(d)
shall survive and continue in full force and effect without
limitation of time; and
(b) a claim for any breach of any of the representations and warranties
contained in this Agreement involving fraud or fraudulent
misrepresentation may be made at
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any time following the date hereof, subject only to applicable
limitation periods imposed by law.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
5.1 Representations and Warranties.
The Purchaser represents and warrants to each of the Vendors as
follows and acknowledges and confirms that each of the Vendors is relying on
such representations and warranties in connection with the sale by such Vendor
of the Purchased Assets it hereby sells to the Purchaser:
(a) Existence and Capacity. The Purchaser is a corporation validly
existing under the laws of the State of Delaware and it has the
corporate power to enter into this Agreement and perform its
obligations hereunder;
(b) Authorization. This Agreement has been duly authorized, executed and
delivered by the Purchaser and is a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser by
each of the Vendors in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency and other laws
affecting the enforcement of rights of creditors generally and
except that equitable remedies may only be granted in the discretion
of a court of competent jurisdiction;
(c) No Violation. The execution and delivery of this Agreement by the
Purchaser and the consummation of the transactions provided for
herein do not result in the violation of or conflict with any
provision of the constating documents or by-laws or resolutions of
the board of directors (or any committee thereof) or shareholders of
the Purchaser; and
(d) Consents and Approvals. There is no requirement for the Purchaser to
make any filing with, give any notice to or obtain any licence,
permit, certificate, registration, authorization, consent or
approval of, any government or regulatory authority as a condition
to the lawful consummation of the transactions contemplated by this
Agreement.
5.2 Survival of Representations and Warranties of the Purchaser.
The representations and warranties of the Purchaser contained in
this Agreement shall survive the closing of the transactions contemplated hereby
for a period of one year after the Closing Date unless a bona fide notice of a
claim shall have been made in writing before the expiry of that period, in which
case the representation and warranty to which such notice applies shall survive
in respect of that claim until the final determination or settlement of the
claim, and, notwithstanding such closing nor any investigation made by or on
behalf of any Vendor, shall continue in full force and effect for the benefit of
the Vendors during such period, except that:
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(a) the representations and warranties set out in Sections 5.1(a) and
5.1(b) shall survive and continue in full force and effect without
limitation of time; and
(b) a claim for any breach of any of the representations and warranties
contained in this Agreement involving fraud or fraudulent
misrepresentation may be made at any time following the date hereof,
subject only to applicable limitation periods imposed by law.
ARTICLE 6
COVENANTS
6.1 Removal of Purchased Assets.
(a) The Purchaser covenants and agrees with Celestica International that
it will not, without the prior written consent of Celestica International,
remove the International Fixed Assets, or suffer or permit the International
Fixed Assets to be removed, from the respective locations at which they are
located on the date hereof until the earlier of (i) the expiry of the Initial
Term of the Supply Agreement and (ii) the effective date of a termination of the
Supply Agreement by Dynamo Power System (USA) LLC permitted pursuant to Section
24.2 of the Supply Agreement.
(b) The Purchaser covenants and agrees with Celestica Corp that prior to
the date of termination of the Supply Agreement it will not, without the prior
written consent of Celestica Corp, remove the Corp Fixed Assets, or suffer or
permit the Corp Fixed Assets to be removed, from the respective locations at
which they are located on the date hereof until the earlier of (i) the expiry of
the Initial Term of the Supply Agreement and (ii) the effective date of
termination of the Supply Agreement by Dynamo Power System (USA) LLC permitted
pursuant to Section 24.2 of the Supply Agreement.
6.2 Use of Name.
The Purchaser agrees that it shall as soon as practicable after the
Time of Closing and in any event no later than March 22, 2005, cease any use of
the name "Celestica" or any logos, trade-marks or derivatives thereof (other
than the letters "CPS" which the Purchaser and its Affiliates shall be entitled
to use without limitation by Celestica Parent or any of its Subsidiaries) in the
style or manner in which it represents itself or conducts its business,
including without limitation in the labelling or packaging of products and goods
sold by the Purchaser, and on its letterhead, invoices and other stationery;
provided that the Purchaser shall, or shall cause the Purchaser to, notify the
Purchaser's component vendors within 45 days of the Closing Date to cease
branding product components with the "Celestica" name, or any logos, trade-marks
or derivatives thereof (other than the letters "CPS" which the Purchaser and its
Affiliates shall be entitled to use without limitation by Celestica Parent or
any of its Subsidiaries).
6.3 Tax Matters.
(a) It is agreed that the Vendors and the Purchaser will not comply with
the provisions of any so-called bulk transfer or bulk sales laws of any
jurisdiction in connection with
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the sale to the Purchaser of the Purchased Assets. The Vendors will use
reasonable commercial efforts to obtain prior to Closing other applicable Tax
clearance, withholding, good standing or similar certificates, and will provide
copies of any such certificates so obtained to the Purchaser at Closing.
(b) Each of Celestica Corp and the Purchaser agree to cooperate with the
other in preparing Internal Revenue Form 8594 for filing by each and to furnish
the other with a copy of such Form prepared in draft form within a reasonable
period before its filing due date.
(c) All real property taxes, personal property taxes and similar
obligations levied with respect to the Purchased Assets for a taxable period
which includes (but does not end on) the Closing Date (collectively, the
"Apportioned Obligations"), excluding any Taxes covered by Section 3.4 of this
Agreement, shall be apportioned between the respective Vendor and the Purchaser
as of the Closing Date based on the number of days of such taxable period
included in the taxable period ending on and including the Closing Date (the
"Pre-Closing Tax Period") and the number of days of such taxable period included
in the taxable period beginning the day after the Closing Date (the
"Post-Closing Tax Period"). Such Vendor shall be liable for the proportionate
amount of such taxes that is attributable to the Pre-Closing Tax Period. Within
90 days after the Closing Date, such Vendor and the Purchaser shall present a
statement to the other setting forth the amount of reimbursement to which each
is entitled under this Section together with such supporting evidence as is
reasonably necessary to calculate the proration amount. The proration amount
shall be paid by the party owing it to the other within 10 days after delivery
of such statement. Thereafter, such Vendor shall notify the Purchaser upon
receipt of any bill for real or personal property taxes relating to the
respective Purchased Assets sold by it, part or all of which is attributable to
the Post-Closing Tax Period, and shall promptly deliver such bill to the
Purchaser who shall pay the same to the appropriate governmental authority,
provided that if such bill covers the Pre-Closing Tax Period, such Vendor shall
also remit prior to the due date of assessment to the Purchaser payment for the
proportionate amount of such bill that is attributable to the Pre-Closing Tax
Period. If either such Vendor or the Purchaser shall thereafter make a payment
for which it is entitled to reimbursement under this Section, the other party
shall make such reimbursement promptly but in no event later than 30 days after
the presentation of a statement setting forth the amount of reimbursement to
which the presenting party is entitled along with such supporting evidence as is
reasonably necessary to calculate the amount of reimbursement. Any payment
required under this Section and not made within 10 days of delivery of the
statement shall bear interest at the rate per annum determined, from time to
time, under the provisions of Section 6621(a)(2) of the Code for each day until
paid.
6.4 Registrations.
Celestica Thai shall, in respect of the Thai Purchased Assets which
bear ownership registration documents, if any, file such statements or other
documents as may be necessary to effect a change of the ownership of such Thai
Purchased Assets at the public registry and use commercially reasonable efforts
to cause the Thai Purchased Assets to be re-registered in the name of the
Purchaser no later than the Time of Closing. For certainty, nothing herein shall
require Celestica Thai to register any of the Thai Purchased Assets not already
registered with the applicable Governmental Entity.
- 20 -
ARTICLE 7
CONDITIONS OF CLOSING
7.1 Conditions of Closing in Favour of the Purchaser.
The sale and purchase of the Purchased Assets is subject to the
following terms and conditions for the exclusive benefit of the Purchaser, to be
fulfilled or performed at or prior to the Time of Closing:
(a) Representations and Warranties. The respective representations and
warranties of the Vendors contained in this Agreement shall be true
and correct in all material respects at the Time of Closing, with
the same force and effect as if such representations and warranties
were made at and as of such time, except to the extent that such
representations and warranties are made as of a specified date, in
which case such representations and warranties shall have been true
and correct in all material respects as of the specified date, and a
certificate of a senior officer of the relevant Vendor dated the
Closing Date to that effect shall have been delivered to the
Purchaser;
(b) Covenants. All of the terms, covenants and conditions of this
Agreement to be complied with or performed by the Vendors at or
before the Time of Closing shall have been complied with or
performed in all material respects and a certificate of a senior
officer of the relevant Vendor dated the Closing Date to that effect
shall have been delivered to the Purchaser;
(c) Regulatory Consents. There shall have been obtained, from all
governmental or regulatory authorities, the licences, permits,
consents, approvals, certificates, registrations and authorizations
described in Schedules 4.1(f), Schedule 4.2(f) and Schedule 4.3(f);
and
(d) Canadian Purchase Agreement and U.S. Purchase Agreement. The
transactions contemplated by the U.S. Purchase Agreement and the
Canadian Purchase Agreement shall be completed concurrently with the
closing of the transactions contemplated hereby.
If any of the conditions contained in this Section 7.1 shall not be performed or
fulfilled at or prior to the Time of Closing to the satisfaction of the
Purchaser, acting reasonably, the Purchaser may, by notice to the Vendors,
terminate this Agreement and the obligations of the Vendors and the Purchaser
under this Agreement shall be terminated. If the Purchaser or any of its
representatives or agents is aware, on or prior to the Closing, that a
representation or warranty of the Vendor is incorrect or inaccurate or a
covenant or obligation of a Vendor to be performed on or prior to the Time of
Closing is breached or not performed and the Purchaser proceeds with the
Closing, the Purchaser shall be deemed to have waived its rights in connection
with such representation, warranty, covenant or obligation to the extent of such
incorrectness, inaccuracy, breach or non-performance. No knowledge of the
Purchaser shall, however, be implied solely as a result of the due diligence
investigations undertaken by or on behalf of the Purchaser or its Affiliates
prior to Closing.
- 21 -
7.2 Conditions of Closing in Favour of the Vendor.
The purchase and sale of the Purchased Assets is subject to the
following terms and conditions for the exclusive benefit of the Vendors, to be
fulfilled or performed at or prior to the Time of Closing:
(a) Payment of Purchase Price. The Purchaser shall have paid the
International Closing Payment, the Corp Closing Payment and the Thai
Closing Payment to Celestica International, Celestica Corp and
Celestica Thai, respectively, in accordance with the provisions of
Sections 3.1, 3.2 and 3.3;
(b) Representations and Warranties. The representations and warranties
of the Purchaser contained in Article 5 of this Agreement shall be
true and correct in all material respects at the Time of Closing,
with the same force and effect as if such representations and
warranties were made at and as of such time, except to the extent
that such representations and warranties are made as of a specified
date, in which case such representations and warranties shall have
been true and correct in all material respects as of the specified
date, and a certificate of a senior officer of the Purchaser dated
the Closing Date to that effect shall have been delivered to the
Vendors;
(c) Covenants. All of the terms, covenants and conditions of this
Agreement to be complied with or performed by the Purchaser at or
before the Time of Closing shall have been complied with or
performed in all material respects and a certificate of a senior
officer of the Purchaser dated the Closing Date to that effect shall
have been delivered to the Vendors;
(d) Regulatory Consents. There shall have been obtained, from all
governmental or regulatory authorities, the licences, permits,
consents, approvals, certificates, registrations and authorizations
described in Schedules 4.1(f), Schedule 4.2(f) and Schedule 4.3(f);
and
(e) Canadian Purchase Agreement and U.S. Purchase Agreement. The
transactions contemplated by the U.S. Purchase Agreement and the
Canadian Purchase Agreement shall be completed concurrently with the
closing of the transactions contemplated hereby.
If any of the conditions contained in this Section 7.2 shall not be performed or
fulfilled at or prior to the Time of Closing to the satisfaction of the Vendors,
acting reasonably, the Vendors may, by notice to the Purchaser, terminate this
Agreement and the obligations of the Vendors and the Purchaser under this
Agreement shall be terminated. If the Vendors or any of their respective
representatives or agents are aware, on or prior to the Closing, that a
representation or warranty of the Purchaser is incorrect or inaccurate or a
covenant or obligation of the Purchaser to be performed on or prior to the Time
of Closing is breached or not performed and the Vendors proceed with the
Closing, the Vendors shall be deemed to have waived its rights in connection
with such representation, warranty, covenant or obligation to the extent of such
incorrectness, inaccuracy, breach or non-performance.
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ARTICLE 8
CLOSING ARRANGEMENTS
8.1 Place of Closing.
The Closing shall take place at the Time of Closing at the offices
of Davies Ward Phillips & Vineberg LLP, Suite 4400, 1 First Canadian Place,
Toronto, Ontario M5X 1B1.
8.2 Further Assurances.
From time to time subsequent to the Closing Date, each party to this
Agreement covenants and agrees that it will at all times after the Closing Date,
at the expense of the requesting party, promptly execute and deliver all such
documents, including, without limitation, all such additional conveyances,
transfers, consents and other assurances and do all such other acts and things
as the other party, acting reasonably, may from time to time request be executed
or done in order to better evidence or perfect or effectuate any provision of
this Agreement or of any agreement or other document executed pursuant to this
Agreement or any of the respective obligations intended to be created hereby or
thereby.
8.3 Risk of Loss.
From the date hereof up to the Time of Closing, the Purchased Assets
shall be and remain at the risk of the relevant Vendor. If, prior to the Time of
Closing, all or any part of the Purchased Assets are destroyed or damaged by
fire or any other casualty or shall be appropriated, expropriated or seized by
governmental or other lawful authority, all proceeds of insurance or
compensation for expropriation or seizure shall be paid to the Purchaser at the
Time of Closing and all right and claim of the relevant Vendor to any such
amounts not paid by the Closing Date shall be assigned at the Time of Closing to
the Purchaser.
ARTICLE 9
INDEMNIFICATION
9.1 Indemnification by the Vendors.
Subject to the provisions of Section 9.9, each of the Vendors
jointly and severally agrees to indemnify and save harmless the Purchaser from
and against all Losses suffered or incurred by the Purchaser or any of its
Affiliates as a result of:
(a) any breach by any Vendor of any representation or warranty of such
Vendor contained in Article 4 of this Agreement (provided that no
Vendor shall be required to indemnify or save harmless the Purchaser
in respect of any breach of any representation or warranty made by
such Vendor in Article 4 unless the Purchaser shall have provided
notice to such Vendor in accordance with Section 9.3 on or prior to
the expiration of the applicable time period related to such
representation and warranty as set out in Section 4.4); and
(b) any breach or non-performance by any Vendor of any covenant to be
performed by it which is contained in this Agreement.
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9.2 Indemnification by the Purchaser.
Subject to the provisions of Section 9.9, the Purchaser agrees to
indemnify and save harmless each of the Vendors from and against all Losses
suffered or incurred by such Vendor or any of its Affiliates as a result of:
(a) any breach by the Purchaser of any representation or warranty of the
Purchaser contained in Article 5 of this Agreement (provided that
the Purchaser shall not be required to indemnify or save harmless
any Vendor in respect of any breach of any such representation or
warranty unless such Vendor shall have provided notice to the
Purchaser in accordance with Section 9.3 within the applicable
survival period in respect of such representation and warranty, as
set forth in Section 5.2);
(b) any breach or non-performance by the Purchaser of any covenant to be
performed by it which is contained in this Agreement; and
(c) the use by the Purchaser of the name "Celestica" or any logo,
trade-mark or derivative thereof after the Effective Time.
9.3 Tax Indemnification.
(a) Without duplication of any indemnities granted by the Vendor under
Section 9.1 or otherwise granted under this Section 9.3(a) or granted by a
Vendor or any Affiliate of a Vendor under the Other Purchase Agreements, each of
the Vendors jointly and severally agrees to indemnify and save harmless the
Purchaser from and against all Losses suffered or incurred by the Purchaser or
any of its Affiliates that are attributable to:
(i) any Tax liability of the Vendor or any of its Affiliates which
may be imposed on the Purchaser or any of its Affiliates as a
transferee or successor, by contract, or otherwise (including
any such Tax liability imposed on the Vendor as a transferee
or successor, by contract, or otherwise);
(ii) any failure of the Vendor (for greater certainty, excluding
Celestica Thailand) of its obligation to contribute to
Transaction Taxes as described in Section 3.5 hereof;
(iii) any Taxes attributable to any non-compliance of the Vendor or
the Purchaser as contemplated by Section 6.3(a) hereof; or
(iv) any backup withholding or similar Tax on income or profit of
the Vendor applicable to the Purchase Price but excluding any
Tax that is interest, penalty, fine or similar amount arising
in connection with the failure by the Purchaser to make a
withholding permitted under Section 3.6 hereof.
(b) The Purchaser agrees to indemnify and save harmless Celestica
International and Celestica Corp from and against all Losses suffered or
incurred by any of them or any of their
- 24 -
Affiliates thereto (including, for greater certainty, Celestica Suzhou
Technology Ltd. (or any successor thereto), attributable to any liability for a
Transaction Tax of such party arising in respect of the International Fixed
Assets or the Corp Fixed Assets as a consequence of a breach of the Purchaser's
covenant in Section 6.1 provided, however, the liability of the Purchaser to
indemnify hereunder shall not exceed an amount equal to 50% of such aggregate
Transaction Taxes.
9.4 Notice of Claim.
In the event that a party (the "Indemnified Party") shall become
aware of any claim, proceeding or other matter (a "Claim") in respect of which
another party (the "Indemnifying Party") agreed to indemnify the Indemnified
Party pursuant to this Agreement, the Indemnified Party shall promptly give
written notice thereof to the Indemnifying Party. Such notice shall specify
whether the Claim arises as a result of a claim by a person against the
Indemnified Party (a "Third Party Claim") or whether the Claim does not so arise
(a "Direct Claim"), and shall also specify with reasonable particularity (to the
extent that the information is available) the factual basis for the Claim and
the amount of the Claim, if known.
If, through the fault of the Indemnified Party, the Indemnifying
Party does not receive notice of any Claim in time to contest effectively the
determination of any liability susceptible of being contested, the Indemnifying
Party shall be entitled to set off against the amount claimed by the Indemnified
Party the amount of any Losses incurred by the Indemnifying Party resulting from
the Indemnified Party's failure to give such notice on a timely basis.
9.5 Direct Claims.
With respect to any Direct Claim, following receipt of notice from
the Indemnified Party of the Claim, the Indemnifying Party shall have 60 days to
make such investigation of the Claim as is considered necessary or desirable.
For the purpose of such investigation, the Indemnified Party shall make
available to the Indemnifying Party the information relied upon by the
Indemnified Party to substantiate the Claim, together with all such other
information as the Indemnifying Party may reasonably request. If both parties
agree at or prior to the expiration of such 60-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such Claim, the
Indemnifying Party shall immediately pay to the Indemnified Party the full
agreed upon amount of the Claim, failing which the matter shall be referred to
binding arbitration in such manner as the parties may agree or shall be
determined by a court of competent jurisdiction.
9.6 Third Party Claims.
With respect to any Third Party Claim, the Indemnifying Party shall
have the right, at its expense, to participate in or assume control of the
negotiation, settlement or defence of the Claim and, in such event, the
Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified
Party's out-of-pocket expenses as a result of such participation or assumption.
If the Indemnifying Party elects to assume such control, the Indemnified Party
shall have the right to participate in the negotiation, settlement or defence of
such Third Party Claim
- 25 -
and to retain counsel to act on its behalf, provided that the fees and
disbursements of such counsel shall be paid by the Indemnified Party unless the
Indemnifying Party consents to the retention of such counsel or unless the named
parties to any action or proceeding include both the Indemnifying Party and the
Indemnified Party and the representation of both the Indemnifying Party and the
Indemnified Party by the same counsel would be inappropriate due to the actual
or potential differing interests between them (such as the availability of
different defences). If the Indemnifying Party, having elected to assume such
control, thereafter fails to defend the Third Party Claim within a reasonable
time, the Indemnified Party shall be entitled to assume such control, and the
Indemnifying Party shall be bound by the results obtained by the Indemnified
Party with respect to such Third Party Claim.
9.7 Settlement of Third Party Claims.
If the Indemnifying Party fails to assume control of the defence of
any Third Party Claim, the Indemnified Party shall have the exclusive right to
contest, settle or pay the amount claimed. Whether or not the Indemnifying Party
assumes control of the negotiation, settlement or defence of any Third Party
Claim, the Indemnifying Party shall not settle any Third Party Claim without the
written consent of the Indemnified Party, which consent shall not be
unreasonably withheld or delayed; provided, however, that the liability of the
Indemnifying Party shall be limited to the proposed settlement amount if any
such consent is not obtained for any reason.
9.8 Co-operation.
The Indemnified Party and the Indemnifying Party shall co-operate
fully with each other with respect to Third Party Claims, and shall keep each
other fully advised with respect thereto (including supplying copies of all
relevant documentation promptly as it becomes available).
9.9 Monetary Limit on Indemnification.
(a) No Claim shall be made by any Indemnified Party in respect of Losses
suffered or incurred by it pursuant to:
(i) Section 9.1(a) (other than arising from a breach or inaccuracy
of the representations and warranties contained in Section
4.1(d), 4.2(d) or 4.3(d);
(ii) Section 9.1(b) (other than in respect of a failure by the
Vendors to sell the Purchased Assets to the Purchaser as
provided herein except where permitted to do so in this
Agreement or in respect of a breach or non-performance by the
Vendors of their respective covenants in Section 6.3);
(iii) Section 9.2(a); or
(iv) Section 9.2(b) (other than in respect of a failure by the
Purchaser to purchase the Purchased Assets from the Vendors as
provided herein except where permitted to do so in this
Agreement or in respect of a
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breach or non-performance by the Purchaser of its covenants in
Section 6.3),
until the aggregate of all Losses suffered or incurred by such Indemnified Party
in respect of all matters which could be the subject of Claims under the
foregoing Sections and by it and indemnified parties that are its Affiliates
under the comparable indemnification provisions of the Other Purchase
Agreements, exceeds $500,000, in which case the Indemnifying Party's liability
to indemnify the Indemnified Party shall commence from the first dollar of
Losses in excess of $250,000.
(b) An Indemnifying Party shall have no liability to indemnify an
Indemnified Party for any Losses pursuant to:
(i) Section 9.1(a) (other than arising from a breach or inaccuracy
of any of the representations and warranties contained in
Section 4.1(d), 4.2(d) or 4.3(d);
(ii) Section 9.1(b) (other than in respect of a failure by the
Vendors to sell the Purchased Assets to the Purchaser as
provided herein except where permitted to do so in this
Agreement or in respect of a breach or non-performance by the
Vendors of their respective covenants in Section 6.3;
(iii) Section 9.2(a); or
(iv) Section 9.2(b) (other than in respect of a failure by the
Purchaser to purchase the Purchased Assets from the Vendors as
provided herein except where permitted to do so in this
Agreement or in respect of a breach or non-performance by the
Purchaser of its covenants in Section 6.3),
after the aggregate of all successful Claims for Losses made by such Indemnified
Party under the foregoing Sections and by it and the indemnified parties that
are its Affiliates under the comparable indemnification provisions of the Other
Purchase Agreements exceeds $10,000,000.
9.10 Exclusivity.
The provisions of this Article 9 shall apply to any Claim for breach
of any covenant, representation, warranty or other provision of this Agreement
or any agreement, certificate or other document delivered pursuant hereto (other
than a claim for specific performance or injunctive relief) with the intent that
all such Claims shall be subject to the limitations and other provisions
contained in this Article 9.
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ARTICLE 10
GENERAL
10.1 Notices.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given upon
receipt if (i) delivered in person, (ii) transmitted by facsimile or similar
means of recorded electronic communication with receipt confirmed, or (iii) sent
by registered mail or courier, charges prepaid, addressed as follows:
(a) if to Celestica International, Celestica Corp or Celestica
Thai:
c/o Celestica Inc.
1150 Eglinton Avenue East
Toronto, ON M3C 1H7
Attention: Senior Vice-President and Chief Legal Officer
Facsimile No.: 416-448-2817
with a copy to:
Attention: Senior Vice-President, Corporate Development
Facsimile No.: 416-448-5444
(b) if to the Purchaser:
c/o C&D Technologies, Inc.
1400 Union Meeting Road
Blue Bell, PA 19422
Attention: Vice-President, General Counsel
Facsimile No.: 215-619-7816
with a copy to:
Attention: Vice-President, Corporate Development
Facsimile No.: 215-619-7875
Any party may at any time change its address for service from time
to time by giving notice to the other parties in accordance with this Section
10.1.
10.2 Commissions, etc.
Each of the Vendors severally (and not jointly or jointly and
severally) agrees to indemnify and save harmless the Purchaser from and against
all Losses suffered or incurred by the Purchaser in respect of any commission or
other remuneration payable to any broker, agent or other intermediary who is
acknowledged by the Vendor to act or have acted for or on behalf of the Vendor
or any of its Affiliates in connection with the transactions contemplated
hereby, and the Purchaser agrees to indemnify and save harmless each of the
Vendors from and against all
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Losses suffered or incurred by such Vendor in respect of any commission or other
remuneration payable to any broker, agent or other intermediary who is
acknowledged by the Purchaser to act or have acted for the Purchaser or any of
its Affiliates in connection with the transactions contemplated hereby.
10.3 Consultation and Public Announcements.
The Purchaser shall consult with the Vendors, and the Vendors shall
consult with the Purchaser, before issuing any press release or making any other
public announcement with respect to this Agreement or the transactions
contemplated hereby and, except as required by any applicable law or regulatory
requirement, none of the Vendors or the Purchaser shall issue any such press
release or make any such public announcement without the prior written consent
of the other parties to this Agreement.
10.4 Disclosure.
Prior to any public announcement of the transaction contemplated
hereby pursuant to Section 10.4, no party shall disclose this Agreement or any
aspect of such transaction except to its board of directors and, in the case of
any Vendor, to the board of directors of its parent corporation, Celestica Inc.,
or any committee thereof, and on a "need to know" basis (i) to its senior
management, (ii) to its legal, accounting, financial or other professional
advisors who are assisting it in connection with the transaction, and (iii) as
may otherwise be required by any applicable law or any regulatory authority
having jurisdiction or any stock exchange on which the shares of such party or
of an Affiliate of such party are listed.
10.5 Celestica Parent Guarantee.
(a) Celestica Parent hereby irrevocably and unconditionally guarantees to
the Purchaser, jointly and severally with the Vendors, the performance by the
Vendors of their respective obligations under this Agreement, including, without
limitation, the indemnification obligations of the Vendors contained in Article
9. The Purchaser shall not be required to give any notice to, or make any demand
on, any Vendor or to proceed against any Vendor's assets prior to requiring the
performance by Celestica Parent of the obligations guaranteed under this Section
10.5. Celestica Parent agrees that its obligations under this Section 10.5 will
not be discharged except by complete performance of all obligations of the
Vendors set forth in this Agreement.
(b) Celestica Parent hereby agrees, in furtherance of the foregoing and
not in limitation of any other right which the Purchaser may have against
Celestica Parent by virtue hereof, that upon the failure of any Vendor to pay or
perform any of its obligations when and as the same shall become due hereunder,
Celestica Parent will, upon demand, pay, perform or cause to be paid or
performed all obligations then due as aforesaid.
10.6 C&D Parent Guarantee.
(a) C&D Parent hereby irrevocably and unconditionally guarantees to the
Vendors, jointly and severally with the Purchaser, the performance by the
Purchaser of its obligations under this Agreement, including, without
limitation, the indemnification obligations of the
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Purchaser contained in Article 9. The Vendors shall not be required to give any
notice to, or make any demand on, the Purchaser or to proceed against the
Purchaser's assets prior to requiring the performance by C&D Parent of its
obligations under this Section 10.6. C&D Parent agrees that the obligations
guaranteed under this Section 10.6 will not be discharged except by complete
performance of all obligations of the Purchaser set forth in this Agreement.
(b) C&D Parent hereby agrees, in furtherance of the foregoing and not in
limitation of any other right which any Vendor may have against C&D Parent by
virtue hereof, that upon the failure of the Purchaser to pay or perform any of
its obligations when and as the same shall become due hereunder, C&D Parent
will, upon demand, pay, perform or cause to be paid or performed all obligations
then due as aforesaid.
10.7 Counterparts.
This Agreement may be executed in counterparts, each of which shall
constitute an original and all of which taken together shall constitute one and
the same instrument.
IN WITNESS WHEREOF this Agreement has been executed by the parties
on the date first written above.
CELESTICA INTERNATIONAL INC.
by /s/ Rahul Suri
_____________________________________
Name: Rahul Suri
Title: Authorized Signatory
CELESTICA CORPORATION
by /s/ Rahul Suri
_____________________________________
Name: Rahul Suri
Title: Authorized Signatory
CELESTICA (THAILAND) LIMITED
by /s/ Rahul Suri
_____________________________________
Name: Rahul Suri
Title: Aughorized Signatory
DYNAMO ACQUISITION CORP.
by /s/ Stephen E. Markert, Jr.
_____________________________________
Name: Stephen E. Markert, Jr.
Title: Vice President and CFO
CELESTICA INC.
by /s/ Rahul Suri
_____________________________________
Name: Rahul Suri
Title: Senior Vice-President,
Corporate Development
C&D TECHNOLOGIES INC.
by /s/ Stephen E. Markert, Jr.
_____________________________________
Name: Stephen E. Markert, Jr.
Title: Vice President and CFO