Free Letter - District Court of Delaware - Delaware

Case 1 :05-cv—00561-SLR Document 11-2 Filed 03/27/2006 Page 1 014
7}
A-0043

Case 1 :05-cv-00561-SLR Document 1 1-2 Filed 03/27/2006 Page 2 of 4
r ore: ¤u:a—;suu0 Z3 Dec O3 6:08 PM PAGE 2/4 GCD Chicago
F AFFIDAVIT OF JAMES D. MCDONOUGH
STATE OF ILLINOIS )
COUNTY OF COOK g
My name is James D. McDonough. I am over 18 years of age and competent to testiiy as
to the matters set forth in this Affidavit.
S1. Iamanattomeylicenscdtopraeticeint11eStateofI1iinois. Atalitimesrelcvant
to the thats set forth herein, I was apartner at the law firm ofGardn¤·, Carton & Douglas located
in Chicago, Hlinois.
‘ 2. Gardner, Carton & Douglas represented Pacific Drmlop Hbldings (USA), Inc. A
(“PDH USA") and certain of its atliliates in connection with the sale of the GNB businesses,
comprised of certain subsidiaries and assets of other subsidiaries to Exicle Corporation (now
known as Exide Technologies) and certain of its affiliates and subsidiaries. I was one of the
4 _ Gardner, Carton & Douglas attorneys who took a lead role in the negotiation ofthe agreements
pursuant to which the GNB businesses were conveyed to Exide.
3. Ouor about May 9,2000, PDH USAa.ndits atiiliates entcncdinmaSa1c
Agreement pursuant to which it agreed to convey certain stock and assets comprising the
worldwide business to Bxide Corporation (n/lr/a Exide Technologies). At the same time,
PDH USA and Exide Corporation also entered imo a Coordinating Agreement, a copy of which
is attached hereto as Exhibit ___. In the Coordinating Agreement, PDH USA (referred to therein
as the "SelIer") and Exide Corporation (referred to therein as the "Buyer") agreed, among other
things, that their international subsidiaries would enter into separate sale agreements, referred to
therein as "ROW Agreements" to effect the transfer of the international GNB aE1iates and
subsidiaries (the wlnternational Sellers") to Exide's international subsidiaries and affiliates (the
12/23/03 TUE 19:09 (TX/RX N0 9330]
· A-0044

Case 1 :05-cv-00561-SLR Document 1 1-2 Filed 03/27/2006 Page 3 of 4
wiz) :>6s—:s000 23 Dec O3 6:08 PM PAGE 3/4 GCD Chfcago
\
"lntemational Buyers"). [Q., Section $.S(e) at 21. The Coordinating Agreement was intended to
have an over-arching eifect on the separate sales transactions. The parties oovenanted that the
International Sellers and Buyers would become signatories to the Coordinating Agreement and
subjecttntheobligatiounimposetionthernlrytlratagreunexrt. ld.
4. A provision was imrluded in each of the separate Sale Agreements which provided
that the signatories’ sole and exclusive remedy for breach of the Sale Agreements was the
indcmni iication provided in the Coordinating Agreement The indemnitication obligations ofthe
parties are set forth in Article IV ofthe Coordinating Agreement. ln subsection 4.2(a)(i), the
Buyer agrees to indemnify and hold Seller and the Intemational Sellers harmless horn my and
all Lossm and Expenses arising Enom any breach byliuyer of my of its covenants or agreements
intheSa1e AgreerncntsorintlrisAgxeezn¤rt. gat 16. Fortbepurposeoftlrisandother
Sections ofthe Coordinating Agreement, the term "Buyer” is defined to include any International
K Buyer, as the context may require.
S. Ou or about June 19, 2000, the parties executed Ammdment No. I to the
Coordinating Agreement. That Amendment states tlratthe Coordinating Agreunentruuained in
lirll force and effect except as expressly amended therein. Section 4.2(a)(i) was amended to
U insert the words "0r, for sake of elariiication, any International Buyer" edu the word "Buye?’ in
the iirstlineofthatScction. AtthetimeAmmdme1uNo. l wasexecnted, itwasnotmy
that the parties thereby intmded no limit the rights of the Seller or Irrtuuaiional
Sellers to seek recourse against the lntemational Buyers for breaches by them unda their
respective Sale Agreements.
- 2 -
· J
V 12/23/03 TUE 19:09 [TX/RX N0 9330]
A-0045

Case 1 :05-cv-00561-SLR Document 1 1-2 Filed 03/27/2006 Page 4 of 4
(312) 569-3000 23 Dec O3 6:08 PM PAGE 4 /4 GCD Chicago
I SOLEMNLY AFFIRM under the penalties of perjury that the foregoing facts are true
and correct based upon my personal lmowledge.
I Igmes D. McDonough E 5 U
STATE OF ILLINOIS
COUNTY OF COOK
I HEREBY CERTIFY, that on this»@"'{day ofé grader, 2004, BEFORE ME,
the undersigned Notary Public of said State, personally appeared James D. McDonough, whose
name is subsen`bodtut1newithiuiust:mnenL audaokuowledgedthathcexecuiedtiresmue Rxrthe
purposes therein contained.
WITNESS my hand and Notzrial Seal.
)·· `
` No ’
My ' ` Expires: £¢»gv_w,·£ ..77 .200*7
. cause i
amuse
'tihlidlrt
CHM/i1J1692l2 Iwliiqouypy
- 3 -
12/za/oa TUE 19:09 {Tx/Rx N0 asso)
A-0046