EXHIBIT 5
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CALL AGREEMENT
THIS CALL AGREEMENT is dated December 31, 2003
AMONG:
XXXXXXX POWER SYSTEMS INC., a corporation existing under the
laws of Canada, having an office at 0000 Xxxxx Xxxxxx Xxx,
Xxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx, X0X 0X0
("XXXXXXX")
AND:
DAIMLERCHRYSLER AG, a corporation existing under the laws of
Germany, having an office at Xxxxxxxxxxxx 000, 00000
Xxxxxxxxx, Xxxxxxx
("DCX")
AND:
FORD MOTOR COMPANY, A corporation existing under the laws of
Delaware, having an office at Xxx Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx, 00000, Xxxxxx Xxxxxx of America
("FORD")
AND:
DBF PREF SHARE HOLDINGS INC., a corporation existing under the
laws of Canada, having an office at 1500 - 0000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0, Xxxxxx
("DBF HOLDINGS")
(Xxxxxxx, DCX, Ford and DBF Holdings are collectively
referred to in this Agreement as the "PARTIES" and
individually as a "PARTY")
WHEREAS:
(A) On August 29, 0000 Xxxxxxx, XXX and certain related parties
entered into the Original Alliance Agreement, which formalized the combination
of the Fuel Cell businesses of Xxxxxxx and DCX into an alliance between Xxxxxxx
and DCX for the research, development, commercialization, manufacture, marketing
and sale of Fuel Cells and Vehicular Fuel Cell Systems;
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(B) On April 7, 1998, Xxxxxxx, DCX, Ford, and certain related
parties entered into the New Alliance Agreement and other related agreements to
amend the Original Alliance Agreement and establish a close collaboration for
the research, development, commercialization, manufacture, marketing and sale of
Vehicular Fuel Cells, Vehicular Fuel Cell Systems and E-Drives;
(C) On November 30, 2001 the Parties entered into the Third
Alliance Agreement (the "Third Alliance Agreement") to enhance Xxxxxxx'x ability
to research, develop, commercialize, manufacture, market, sell and service Fuel
Cells, Fuel Cell systems, E-Drives and power electronics for all applications;
(D) Pursuant to the Third Alliance Agreement, DCX and Ford agreed
to invest up to CDN$30 million and CDN$25 million respectively in Xxxxxxx by
participating in an Equity Financing undertaken by Xxxxxxx before November 30,
2004 (the "Follow-On Financing");
(E) On December 6, 2002, the Parties executed a non-binding
memorandum of understanding (as amended, the "MOU") which contemplated, among
other things, that instead of DCX's and Ford's commitment to provide the
Follow-On Financing, they would, at Xxxxxxx'x request at any time after December
31, 2003, make an equity investment in Xxxxxxx of a total of CDN$55 million,
comprising CDN$30 million by DCX and CDN$25 million by Ford (the "Equity
Financing Commitment");
(F) On December 30, 2002, Xxxxxxx completed an offering of
7,700,000 Xxxxxxx Common Shares (the "Offering");
(G) Pursuant to a letter agreement dated December 10, 0000 xxxxx
Xxxx, XXX and Xxxxxxx, Xxxxxxx conditionally waived the Follow-On Financing
obligation in respect of the Offering, subject to the entering into of an
amendment to the Third Alliance Agreement required to implement the Equity
Financing Commitment; and
(H) The Parties have agreed to enter into this Agreement to record
the terms for the Equity Financing Commitment separately from other amendments
to the Third Alliance Agreement being considered by the Parties;
NOW THEREFORE the Parties mutually covenant and agree as follows:
PART 1
DEFINITIONS AND INTERPRETATION
DEFINITIONS
1.1 In this Agreement, unless otherwise expressly defined, the
following words and expressions will have the respective meanings ascribed to
them below:
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(a) "CALL DATE" means the date specified in each Call Notice on
which the Closing for the Xxxxxxx Common Shares is to occur;
(b) "CALL NOTICE" means a notice to be given by Xxxxxxx to each of
DCX and Ford on the exercise of the call as described in ss.2.1
specifying, subject to the limitations contained in ss.2.1, the total
number of Xxxxxxx Common Shares to be purchased by members of the DCX
Group and the Ford Group provided that 54.55% of the above total number
of Xxxxxxx Common Shares specified in the Call Notice are allocated to
the DCX Group and 45.45% are allocated to the Ford Group and the Call
Date for such Xxxxxxx Common Shares
(c) "CALL PRICE" means, with respect to the Xxxxxxx Common Shares
specified in any particular Call Notice, the average of the closing
sale price per Xxxxxxx Common Share as reported on the Nasdaq National
Market for the 20 trading days ending three Business Days before the
applicable Call Date; and
(d) "CLOSING" means, with respect to any particular Call Notice,
the completion of the purchase and sale of Xxxxxxx Common Shares
pursuant to this Agreement.
INTERPRETATION
1.2 In this Agreement, except as otherwise expressly provided or
as the context otherwise requires
(a) "this Agreement" means this Call Agreement as from time to
time supplemented or amended by one or more agreements entered into
pursuant to the applicable provisions of this Agreement;
(b) a reference to a Part is to a Part of this Agreement, and the
symbol ss. followed by a number or some combination of numbers and
letters refers to the section, paragraph, subparagraph, clause or
subclause of this Agreement so designated;
(c) headings are solely for convenience of reference and are not
intended to be complete or accurate descriptions of content or to be
guides to interpretation of this Agreement or any part of it;
(d) a reference to an entity includes any successor to that
entity;
(e) a word importing the masculine gender includes the feminine
and neuter, a word in the singular includes the plural, a word
importing a corporate entity includes an individual, and vice versa;
(f) a reference to "approval", "authorization" or "consent" means
written approval, authorization or consent: and
(g) capitalized terms in this Agreement, including the recitals,
will have the meanings ascribed to them in the Third Alliance
Agreement.
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CURRENCY
1.3 Unless otherwise specifically indicated, all sums of money referred to
in this Agreement are expressed in lawful money of Canada.
PART 2
THE CALL
CALL RIGHT
2.1 Notwithstanding ss.2.3 and ss.3.1 of the Third Alliance
Agreement but subject to the terms and conditions hereof , Xxxxxxx may, at any
time, and from time to time, require DCX and Ford to purchase additional Xxxxxxx
Common Shares by delivering to each of them notice (a "Call Notice") at least 30
days before the Call Date, and whenever Xxxxxxx delivers a Call Notice:
(a) DCX will, or will cause members of the DCX Group to, on or
before the Call Date, subscribe for, take up, purchase and pay for a
number of Xxxxxxx Common Shares equal to the lesser of
(i) the number of Xxxxxxx Common Shares specified in the
Call Notice to be purchased by members of the DCX Group, and
(ii) the quotient obtained when
(A) the amount by which CDN$30,000,000 exceeds the
total of all amounts, if any, previously paid by
members of the DCX Group for the purchase of Xxxxxxx
Common Shares pursuant to this Agreement
is divided by
(B) the Call Price for the Xxxxxxx Common Shares
to be purchased pursuant to such Call Notice, and
(b) Ford will, or will cause members of the Ford Group to, on or
before the Call Date, subscribe for, take up, purchase and pay for a
number of Xxxxxxx Common Shares equal to the lesser of
(i) the number of Xxxxxxx Common Shares specified in the
Call Notice to be purchased by members of the Ford Group, and
(ii) the quotient obtained when
(A) the amount by which CDN$25,000,000 exceeds the
total of all amounts, if any, previously paid by
members of the Ford Group for the purchase of Xxxxxxx
Common Shares pursuant to this ss.2.1(b)
is divided by
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(B) the Call Price for the Xxxxxxx Common Shares
to be purchased pursuant to such Call Notice.
WAIVER
2.2 In consideration of the rights granted to Xxxxxxx in ss.2.1,
Xxxxxxx irrevocably waives its rights to require DCX and Ford to purchase
Xxxxxxx Common Shares pursuant to ss.2.1(b) and ss.2.2(b) of the Third Alliance
Agreement. The Parties agree to amend the Third Alliance Agreement to delete
ss.2.1(b) and ss.2.2(b) from the Third Alliance Agreement.
NOT A MISSED FINANCING
2.3 The Parties agree that, provided that DCX and Ford perform
their respective obligations as and when required pursuant to this Agreement,
the fact that DCX and Ford did not purchase Xxxxxxx Common Shares in connection
with the Offering will not be considered as a failure to purchase the number of
Equity Securities in respect of the Offering for the purposes of ss.2.12,
ss.2.13, ss.7.34 or ss.7.35 of the Third Alliance Agreement.
ISSUANCE OF SHARES NOT AN EQUITY FINANCING
2.4 The Parties agree that the issuance of Xxxxxxx Common Shares
pursuant to this Agreement will not be considered to be an Equity Financing
under the Third Alliance Agreement.
REGISTRATION RIGHT
2.5 Each of DCX and Ford acknowledges that the Xxxxxxx Common
Shares acquired by members of its Group pursuant to this Agreement will be
subject, in accordance with applicable securities laws and the rules and
policies of applicable stock exchanges, to restrictions on resale. Xxxxxxx
agrees that upon request by DCX or Ford no earlier than 12 months after the
Call Date, Xxxxxxx will qualify the Xxxxxxx Common Shares issued to DCX or Ford
respectively pursuant to this Agreement, by issuance under securities laws in
the United States of America of a registration statement or similar document
pertaining thereto. Xxxxxxx, DCS and Ford will negotiate in good faith and enter
into a registration rights agreement before September 30, 2004. If the parties
are unable to enter into such registration rights agreement before September 30,
2004, any of the parties may submit the matter for final resolution by a single
arbitrator appointed and acting under the arbitration rules of the American
Arbitration Association. The parties agree that all arbitration proceedings will
be conducted in New York, New York.
LIMITATION ON TOTAL SHAREHOLDINGS
2.6 Except as provided in ss.2.7 and notwithstanding the
restrictions contained in ss.3.1 of the Third Alliance Agreement, any
acquisition of Xxxxxxx Common Shares pursuant to this Agreement by any member of
the DCX Group or the Ford Group may not exceed the number of Xxxxxxx Common
Shares that, when added to the total number of Xxxxxxx Common Shares owned by
the members of the DCX Group and the Ford Group immediately before such
acquisition, would result in the members of the DCX Group and the Ford Group
owning, in the aggregate, more than 45%, calculated on a Fully Diluted basis, of
all outstanding Xxxxxxx Common Shares.
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ELECTION TO WAIVE LIMITATION OR DEFER EXCESS SHARES
2.7 If, on the date for the issuance of Xxxxxxx Common Shares to
members of the DCX Group or the Ford Group pursuant to this Agreement, the
number of such shares to be issued is greater than the number permitted under
ss.2.6, Xxxxxxx may, at its option,
(a) waive the limitation on the maximum number of shares permitted
under ss.2.6 for such issuance (but no such waiver will constitute a
waiver of such limitation for any other issuance or acquisition of
shares), in which case DCX and Ford will cause such members of their
respective Groups to purchase the number of shares required pursuant to
this Agreement or such lesser number of shares as is specified by
Xxxxxxx, or
(b) accept the subscription price for and issue the maximum number
of shares permitted under ss.2.6, in which case DCX and Ford will cause
such members of their respective Groups to purchase that number of
shares.
CLOSING
2.8 Each Closing will be completed at the offices of Xxxxxxx and
on the Call Date and at the time specified in the applicable Call Notice, or
such other locations, date and time as Xxxxxxx, DCX and Ford may agree in
writing, acting reasonably.
CLOSING DOCUMENTS
2.9 At the Closing, each of DCX and Ford will pay to Xxxxxxx the
Call Price for each Xxxxxxx Common Share to be issued to it or members of its
Group, by wire transfer to an account specified by Xxxxxxx and Xxxxxxx will
deliver share certificates to each of DCX and Ford for the shares issued to the
members of its Group.
SHARE CERTIFICATE LEGENDS
2.10 Share certificates for Xxxxxxx Common Shares issued by Xxxxxxx
pursuant to this Agreement will bear the following legends, which will remain
thereon as long as the DCX Group or the Ford Group, as applicable, is subject to
the restrictions on transfer of such securities:
(a) "The transfer of the securities represented by this
certificate is subject to the provisions of a Third Alliance Agreement
made November 30, 2001 among Xxxxxxx Power Systems Inc., DCX AG, Ford
Motor Company and DBF Pref Share Holdings Inc. A copy of the Third
Alliance Agreement is on file at the office of the Corporate Secretary
of Xxxxxxx Power Systems Inc."; and
(b) "Unless permitted under securities legislation, the holder of
the securities shall not trade the securities before [INSERT THE DATE
THAT IS FOUR MONTHS AND A DAY AFTER THE DISTRIBUTION DATE]."
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ADDITIONAL LEGEND
2.11 In addition to the legends referred to in ss.2.10, Xxxxxxx
will place on all share certificates representing the Xxxxxxx Common Shares
issued pursuant to this Agreement and registered in the name of any member of
the DCX Group or any member of the Ford Group the following legend, which will
remain thereon until such time as it is no longer required under the U.S.
SECURITIES ACT OF 1933:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "U.S. SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES
FOR THE BENEFIT OF XXXXXXX POWER SYSTEMS INC. (THE "CORPORATION") THAT
SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN
ACCORDANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT , IF
APPLICABLE , OR (C) INSIDE THE UNITED STATES (I) PURSUANT TO THE
EXEMPTION FROM REGISTRATION REQUIREMENTS UNDER THE U.S. SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS, OR (II) PURSUANT TO ANOTHER
APPLICABLE EXEMPTION UNDER THE U.S. SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS GOVERNING THE OFFER AND SALE OF SUCH SECURITIES,
IN EACH CASE AS EVIDENCED BY AN OPINION OF COUNSEL OF RECOGNIZED
STANDING IN FORM REASONABLY ACCEPTABLE TO THE CORPORATION. DELIVERY OF
THIS CERTIFICATE MAY NOT CONSTITUTE "GOOD DELIVERY" IN SETTLEMENT OF
TRANSACTIONS ON STOCK EXCHANGES IN CANADA."
REGULATORY APPROVALS
2.12 The Parties will make all reasonable efforts to obtain all
necessary approvals of Governmental Authorities and stock exchanges for the
issuance of the Xxxxxxx Common Shares pursuant to each Call Notice delivered
under this Agreement, but if any such authority or stock exchange notifies any
Party that it will not grant an approval necessary for the issuance of Xxxxxxx
specified in a particular Call Notice
(a) Ford and DCX and each member of their respective Groups will
be released from their obligations to purchase the Xxxxxxx Common
Shares specified in such Call Notice (provided that such release will
not affect Xxxxxxx'x right to deliver subsequent Call Notices under
ss.2.1 to obtain the maximum amount of subscription proceeds permitted
under ss.2.1) and, if applicable, and the fact that such Xxxxxxx Common
Shares were not purchased will not be considered as a failure to
purchase the number of Equity Securities in respect of the Offering for
purposes of ss.2.12, ss.2.13, ss.7.34 or ss.7.35 of the Third Alliance
Agreement, and
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(b) Xxxxxxx will be released from its obligation to issue the
Xxxxxxx Common Shares specified in such Call Notice.
PART 3
GENERAL
MODIFICATIONS
3.1 No amendment, modification, supplement, termination or waiver
of any provision of this Agreement will be effective unless in writing signed by
each of the Parties having rights under this Agreement at that time and then
only in the specific instance and for the specific purpose given.
FURTHER ASSURANCES
3.2 The Parties will execute such further assurances and other
documents and instruments and do such other things as may be necessary to
implement and carry out the intent of this Agreement.
ENTIRE AGREEMENT
3.3 The provisions in this Agreement constitute the entire
agreement among the Parties in respect of the matters agreed to or expressly
contemplated herein and supersede all previous expectations, understandings,
communications, representations and agreements, whether verbal or written among
the Parties.
EXPENSES
3.4 Except as otherwise expressly stated in this Agreement, each
Party will bear its own costs and expenses incurred in connection with the
preparation, execution and delivery of this Agreement.
NOTICES
3.5 Every notice, request, demand, direction or other
communication (each, for the purposes of this ss.3.5, ss.3.6 and ss.3.7, a
"Notice") required or permitted to be given pursuant to this Agreement will be
deemed to be well and sufficiently given if in writing, in the English language,
and delivered by hand (including recognized overnight courier service) in each
case addressed as follows:
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(a) if to Xxxxxxx at:
0000 Xxxxx Xxxxxx Xxx
Xxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx
X0X 0X0
Attention: Corporate Secretary
(b) if to DCX at:
Xxxxxxxxxxxx 000
00000 Xxxxxxxxx
Xxxxxxx
Attention: Legal Department, General Counsel (HPC 096-0431)
with a copy to: Vice President, Mergers and Acquisitions (HPC 096-0216)
(c) if to Ford at:
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx
00000
U.S.A.
Attention: Corporate Secretary
(d) if to DBF Holdings at:
c/o Ballard Power Systems Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx
X0X 0X0
Attention: Secretary
and to:
x/x XxxxxxxXxxxxxxx XX
Xxxxxxxxxxxx 000
00000 Xxxxxxxxx
Xxxxxxx
Attention: Legal Department, General Counsel (HPC 096-0431)
with a copy to: Vice President, Mergers and Acquisitions (HPC 096-0216)
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and to:
c/o Ford Motor Company
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx
00000
X.X.X.
Attention: Corporate Secretary
or to such other address as is specified by the particular Party by Notice to
the others.
DEEMED RECEIPT
3.6 Any Notice delivered as aforesaid will be deemed conclusively
to have been effectively given and received on the day Notice was delivered as
aforesaid if it was delivered on a day that was a Business Day or on the next
day that is a Business Day if it was delivered on a day that was not a Business
Day.
CHANGE OF ADDRESS
3.7 A Party may at any time, by Notice to the others, change its
address to some no less convenient address and will so change its address
whenever its address ceases to be suitable for delivery by hand.
ENUREMENT
3.8 This Agreement will enure to the benefit of and be binding
upon the Parties and their respective successors and permitted assigns.
TIME OF THE ESSENCE
3.9 Time is of the essence in the performance of each obligation
under this Agreement.
COUNTERPARTS
3.10 This Agreement may be executed in any number of notarial
authentic copies, each of which will together, for all purposes, constitute one
and the same instrument, binding on the Parties, and each of which will together
be deemed to be an original.
GOVERNING LAW
3.11 This Agreement is and will be deemed to be made in British
Columbia and for all purposes will be governed exclusively by and construed in
accordance with the laws prevailing in the Province of British Columbia and the
federal laws of Canada applicable therein.
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PROCEEDINGS
3.12 Each Party will not, and will ensure that none of its
Subsidiaries will, at any time take any step or proceeding to have any of the
provisions contained in this Agreement declared invalid or unenforceable or use
any defence based on a claim of invalidity or unenforceability of any provision
contained in this Agreement.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto on the
day and year first above written.
XXXXXXX POWER SYSTEMS INC. DAIMLERCHRYSLER AG
Per: Per:
Signature /s/ Xxxxxxx Xxxxx Signature /s/ Xxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxx Name: Xxxx Xxxxxxxx
Title: VP Corporate Strategy Title: Director
and Development
Per: Per:
Signature /s/ Xxxxx Xxxxx Signature /s/ Xxxxxxxx Tuempen
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Name: Xxxxx Xxxxx Name: Dr. Xxxxxxxx Tuempen
Title: Chief Financial Officer Title: Director
FORD MOTOR COMPANY DBF PREF SHARE HOLDINGS INC.
Per: Per:
Signature /s/ Xxxxx X. Xxxxxx, Xx. Signature /s/ Xxxxxxx Xxxxx
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Name: Xxxxx X. Xxxxxx, Xx. Name: Xxxxxxx Xxxxx
Title: Secretary Title: Corporate Secretary
Per:
Signature /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: President
