EX-4.35 4 c88192_ex4-35.htm EX-4.35

EXHIBIT 4.35

 

EXECUTION VERSION

 
Dated 2 March 2017

 

FOSTER WHEELER LLC

 

and

 

AMEC FOSTER WHEELER PLC

 

and

 

SUMITOMO HEAVY INDUSTRIES, LTD.

 

SHARE SALE AGREEMENT

 

relating to the companies comprising the CFB Business

 

 
   

Linklaters LLP

One Silk Street

London EC2Y 8HQ

United Kingdom

 
   
Telephone (44-20) 7456 2000  
Facsimile (44-20) 7456 2222  
Ref: L-244509  
 

EXECUTION VERSION

 

Share Sale Agreement

 

This Agreement is made on 2 March 2017 between:

 

(1)Foster Wheeler LLC, a limited liability company incorporated in Delaware whose registered office is at Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle, DE 19801, United States with its principal office at Perryville Corporate Park, Clinton, New Jersey 08809-4000, United States (the “Seller”);

 

(2)Amec Foster Wheeler plc, a company incorporated in England whose registered office is at Booths Park, Chelford Road, Knutsford, Cheshire, WA16 8QZ (the “Guarantor” and together with the Seller, “AFW/Seller”); and

 

(3)Sumitomo Heavy Industries, Ltd., a company incorporated in Japan whose registered office is at ThinkPark Tower, 1-1 Osaki 2-chome, Shinagawa-ku, Tokyo 141-6025, Japan (the “Purchaser”).

 

Whereas:

 

(A)The Seller has agreed to sell the Shares (as defined below) and transfer the CFB Business to the Purchaser by means of such sale of the Shares and to assume the obligations imposed on the Seller under this Agreement.

 

(B)The Purchaser has agreed to purchase the Shares and acquire the CFB Business from the Seller by means of such purchase of the Shares and to assume the obligations imposed on the Purchaser under this Agreement.

 

(C)By virtue of the sale and purchase of the Shares contemplated by this Agreement and the performance of the obligations under the Transitional Services Agreement and the Transitional Trade Mark Licence, the CFB Business will effectively be transferred by the Seller to the Purchaser.

 

(D)The Guarantor is a party to this Agreement to provide the Guarantee set out in Clause 17 and to assume certain other obligations under this Agreement.

 

It is agreed as follows:

 

1Interpretation

 

In this Agreement, unless the context otherwise requires, the provisions in this Clause 1 apply:

 

1.1Definitions

 

Accounts” means the pro forma balance sheets and the profit and loss accounts of the CFB Business (reflecting, for the avoidance of doubt, any part thereof conducted by any member of the Retained Group), for the balance sheets, as at the end of each month between January 2015 and December 2016, as applicable, and, for the profit and loss accounts, as for the 9-month period ending at the Accounts Date and 12 month period ending at 31 December 2015, as applicable, set out in folders 3.2.9.15.1, 3.2.9.18.2.3, 3.2.9.18.2.4, 3.2.9.18.2.5, 3.2.9.28.1, 3.1.18.26.12.1, 3.1.18.26.12.2, 3.2.2.5, 3.2.2.6 and 3.2.2.3.2 of the Data Room;

 

Accounts Date” means 30 September 2016;

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Affiliate” means, with respect to a person, any other person that Controls, is Controlled by or is under common Control with such person;

 

Aftermarket Affiliates” has the meaning given to it in Clause 5.7.9;

 

Aftermarket Services Business” means the provision of services and the supply and/or installation of parts and components for owners of CFB Products that: (i) have been sold by the Seller’s Group, any Group Company or a third party and have been installed as of the Closing Date, or (ii) will be installed by any Group Company or a third party after the Closing Date, and such services include regular maintenance and emergency repair, improvement of steam generator performance in terms of efficiency, reliability, emissions improvements and fuel flexibility and/or switching, but exclude modifying any operational steam generator that is not a CFB Product into a CFB Product;

 

Aftermarket Services Licence” has the meaning given to it in Clause 8.4.8;

 

Agreed Terms” means, in relation to a document, such document in the terms agreed between the Seller and the Purchaser and signed for identification by the Purchaser and the Seller with such alterations as may be agreed in writing between the Seller and the Purchaser from time to time;

 

Amigo Software” means any and all versions in existence of the thermal design and performance calculation software program used by the Seller’s Group for CFB Products which, at the date of this Agreement, is named “Amigo Designer”;

 

Anti-Corruption Law” means:

 

(i)the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions;

 

(ii)the Foreign Corrupt Practices Act of 1977 of the United States of America, as amended by the Foreign Corrupt Practices Act Amendments of 1988 and 1998, and as may be further amended and supplemented from time to time;

 

(iii)the UK Bribery Act 2010;

 

(iv)any other applicable law (including any (a) statute, ordinance, rule or regulation; (b) order of any court, tribunal or any other judicial body; and (c) rule, regulation, guideline or order of any public body, or any other administrative requirement) which:

 

(a)prohibits the conferring of any gift, payment or other benefit on any person or any officer, employee, agent or adviser of such person; and/or

 

(b)is broadly equivalent to paragraph (ii) or (iii) above or was intended to enact the provisions of the OECD Convention described in paragraph (i) above or which has as its objective the prevention of corruption;

 

Applicable Law” means any statute or other law, ordinance, rule, regulation, judicial or arbitral or regulatory judgment, order, injunction, decision, ruling or award of any Governmental Entity, in each case to the extent applicable to any Group Company or, as the context requires, the Seller’s Group or the Purchaser;

 

Asbestos” has the meaning given to that term in paragraph 1 of Part 1 of Schedule 6;

 

Asbestos Indemnity” means the indemnity set out in Part 1 of Schedule 6;

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Asbestos Indemnity Claim” means a claim under the Asbestos Indemnity;

 

Asbestos Survey” has the meaning given to that term in paragraph 1 of Part 1 of Schedule 6;

 

ASB Sub-Licensee” has the meaning given to it in Clause 8.4.9(ii);

 

Base Working Capital” means US$(73,400,000);

 

Business Day” means a day which is not a Saturday, a Sunday, a public holiday in England, the United States, the Netherlands or Japan or 1 May 2017, 16 August 2017, 17 August 2017, 2 January 2018, 3 January 2018 or 4 January 2018 on which the Purchaser does not conduct its business in Japan;

 

Business IT” has the meaning given to it in paragraph 8.1 of Schedule 4;

 

Cash Balances” means those line items and adjustments included in the “Cash” column in the Estimated Closing Statement or the Final Closing Statement (as applicable), in each case, with reference to the relevant line items and adjustments identified in the Reference Balance Sheet;

 

Cash Extraction” means the extraction of cash from each of the Group Companies achieved between the date of this Agreement and the Closing Date by means of dividends, distributions, capital-reductions, share buybacks or other similar actions in accordance with the Pre-Closing Reorganisation Plan;

 

CFB Business” means the business relating to technologies, research and development, engineering, procurement, manufacturing, selling, licensing, planning, installation and aftermarket servicing of, and any other business activities for, the following products (the “CFB Products”) as conducted by the Seller’s Group within the twelve (12) months immediately prior to Closing:

 

(i)circulating fluidised bed boilers;

 

(ii)bubbling fluidised bed boilers;

 

(iii)circulating fluidised bed scrubbers;

 

(iv)waste heat boilers for non-ferrous metallurgical industries; and

 

(v)pressurised oxygen-steam blown biomass gasifiers,

 

but excluding the Excluded CFB Business.

 

For the avoidance of doubt, the CFB Business includes Seller’s Group’s research and development activities of the technologies relevant to the CFB Products that are conducted by the Seller’s Group as of the date of this Agreement, including research and development activities on metallurgical technologies, such as material technologies;

 

CFB Business IPR” means all Intellectual Property Rights which are used in relation to the CFB Business, excluding any Intellectual Property Rights relating to Business IT;

 

CFB Exclusive Non-Registered IP” means any: (i) Non-Registered IP that exists, and is owned by a Group Company, immediately prior to Closing; and (ii) Transferring Non-Registered IP, in each case, that Relate Exclusively to the CFB Products, including any Transferring Non-Registered IP and any such Non-Registered IP, in each case, protecting:

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(i)the processes for the design and/or operation of CFB Products described under the heading “CFB Exclusive Non-Registered IP” in Schedule 11; and/or

 

(ii)the Seven Categories of Exclusive IP, representative items of which will be identified by the parties pursuant to Clause 5.7.7 of this Agreement;

 

CFB Know-how Materials” has the meaning given to it in paragraph 7.7 of Schedule 4;

 

China Manufacturing Joint Venture” means Amec Foster Wheeler Power Machinery Company Limited;

 

China Manufacturing JV IP” means any Intellectual Property Rights that are owned by the China Manufacturing Joint Venture protecting any manufacturing processes, procedures, practices or methods of manufacture used by the China Manufacturing Joint Venture prior to the Closing Date and any rights in or to any fabrication drawings that have been created by the China Manufacturing Joint Venture;

 

Claim” means a claim by the Purchaser against the Seller or Guarantor for breach of or under this Agreement or the Tax Indemnity;

 

Closing” means the completion of the sale and purchase of the Shares pursuant to Clauses 6.1, 6.2 and 6.3;

 

Closing Cash” means the Group Companies’ Cash Balances as derived from the Final Closing Statement;

 

Closing Date” means the date on which Closing takes place;

 

Closing Indebtedness” means the Indebtedness of the Group Companies derived from the Final Closing Statement;

 

Closing Working Capital” means the Working Capital as derived from the Final Closing Statement;

 

Closing Working Capital Adjustment” means the amount by which the Closing Working Capital exceeds the Base Working Capital (which amount shall be added to the Enterprise Value for the purposes of Clause 3.1.4), or the amount by which the Closing Working Capital is less than the Base Working Capital (which amount shall be deducted from the Enterprise Value for the purposes of Clause 3.1.4), to be determined in accordance with Part 3 of Schedule 3;

 

Company” means FW Energie B.V., a private company with limited liability incorporated under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid), having its official seat (statutaire zetel) in Amsterdam, the Netherlands, and its office at Naritaweg 165, Telestone 8, 1043 BW Amsterdam, the Netherlands, registered with the Dutch Trade Register of the Chamber of Commerce under number 33297184, the particulars of which are listed in paragraph 1 of Schedule 1;

 

Competition Authorities” means the competition authorities of Bulgaria, Republic of Korea, the Philippines, Poland, Russia and Turkey, where a merger control notification is legally required, and “Competition Authority” means any one of them;

 

Completion Payment Amount” has the meaning given to that term in Clause 6.3;

 

Confidentiality Agreement” means the confidentiality agreement dated 24 March 2016 between Amec Foster Wheeler PLC and the Purchaser pursuant to which Amec Foster

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Wheeler PLC made available to the Purchaser certain confidential information relating to the Group;

 

Consolidated Return” means a Tax Document which relates to any arrangement (whether in place by reason of law, agreement or otherwise) with any Tax Authority whereby one company is primarily responsible for the preparation of the Tax Documents relating to another company or companies;

 

Control” means the power to direct the management and policies of a person (directly or indirectly), whether through the ownership of voting securities, by contract or otherwise (and the term “Controlled” shall be interpreted accordingly);

 

Data Room” means the electronic data room containing documents and information relating to the Group made available by the Seller online at https://services.intralinks.com by 23 February 2017, the contents of which are provided to the Purchaser in the form of a DVD-ROM concurrently with the execution of this Agreement, and may be updated in accordance with Clause 5.10;

 

Disclosure Letter” means the letter dated on the same date as this Agreement from the Seller to the Purchaser disclosing information constituting exceptions to the Seller’s Warranties;

 

Draft Closing Statement” has the meaning given to it in Clause 9.1;

 

Effective Time“ has the meaning given to it in paragraph 1.2 of Part 1 of Schedule 3;

 

Employees” means the directors, officers and employees having a written contract of employment or engagement with, or who are otherwise employed or engaged by, a Group Company as on the Closing Date (including, but not limited to, any Transfer Employees), and “Employee” means any one of them;

 

Encumbrance” means any claim, charge, mortgage, lien, option, equitable right, power of sale, pledge, hypothecation, usufruct, retention of title, right of pre-emption, right of first refusal, licence, joint ownership interest, any restriction on the use or other third party right or security interest of any kind, or an agreement, arrangement or obligation to create any of the foregoing;

 

Engineering Manuals” means the complete engineering and/or design manuals for CFB Products that are used by the Seller’s Group for CFB Products, including those manuals which, at the date of this Agreement, are named:

 

  (i)the “Circulating Fluidized Bed Engineering Manual”;
    
  (ii)the “Circulating Fluidized Bed Design Standards Manual”;
    
  (iii)the “Bubbling Fluidized Bed Engineering Manual”; and
    
  (iv)the “Bubbling Fluidized Bed Design Standards Manual”;

 

Enterprise Value” has the meaning given to it in Clause 3.1.1;

 

Environment”, “Environmental Authority”, “Environmental Law”, “Environmental Matters” and “Environmental Permit” have the meanings given to them in paragraph 12.1 of Schedule 4;

 

Estimated Cash” means the Seller’s reasonable estimate of the Group Companies’ Cash Balances as derived from the Estimated Closing Statement;

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Estimated Closing Statement” means the statement setting out the Estimated Working Capital, the Estimated Working Capital Adjustment, the Estimated Cash, the Estimated Indebtedness and the Completion Payment Amount to be delivered by the Seller to the Purchaser in accordance with Clause 6.4;

 

Estimated Indebtedness” means the Seller’s reasonable estimate of the Indebtedness of the Group Companies as derived from the Estimated Closing Statement;

 

Estimated Working Capital” means the Seller’s reasonable estimate of the Working Capital as derived from the Estimated Closing Statement;

 

Estimated Working Capital Adjustment” means the amount by which the Estimated Working Capital is greater than the Base Working Capital (in which case it will be added to the Enterprise Value for the purposes of Clause 6.3) or by which it is less than the Base Working Capital (in which case it will be deducted from the Enterprise Value for the purposes of Clause 6.3);

 

Excluded CFB Business” means:

 

(i)the Aftermarket Services Business currently provided, in part, by the CFB Business for installations located in Canada, the United States and Mexico; and

 

(ii)the business conducted by the following entities:

 

(a)the China Manufacturing Joint Venture;

 

(b)Wuhan Chang Long Power Boiler Company Ltd.;

 

(c)Amec Foster Wheeler Energia S.L.U.; and

 

(d)Amec Foster Wheeler Consulting Poland Sp. z.o.o;

 

Final Closing Statement” means the statement setting out the Working Capital, the Closing Working Capital Adjustment, the Closing Cash and the Closing Indebtedness, to be prepared by the Purchaser in accordance with Clause 9 and Parts 1 and 2 of Schedule 3;

 

Final Payment Date” means 10 Business Days after the date on which the process described in paragraph 2 of Part 1 of Schedule 3 for the preparation of the Final Closing Statement is complete;

 

Fundamental Warranties” means the warranties set forth in (i) paragraphs 1 and 2 of Schedule 4-A of the Guarantor’s Warranties and (ii) paragraphs 1.1 and 2.1 of Schedule 4 of the Seller’s Warranties;

 

Governmental Authorization” means any approval, consent, licence, permit, waiver, order or exemption or registration issued, granted, given or otherwise made available by or under the authority of any Governmental Entity;

 

Governmental Entity” means any court of competent jurisdiction, regulator or other governmental authority;

 

GPG Business” means the business relating to research and development, engineering, procurement, manufacturing, selling, licensing, installation and aftermarket servicing of, and any other business activities for, steam generators, air quality control systems, and steam and electric power plant equipment and related auxiliary equipment as conducted by the Seller’s Group within the twelve (12) months immediately prior to Closing;

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Group” means the Group Companies, taken as a whole;

 

Group Companies” means the Company and the Subsidiaries and NewCos, and “Group Company” means any one of them;

 

Group Companies’ Cash Balances” means the aggregate amount of the Cash Balances held by or on behalf of the Group Companies;

 

Guarantor’s Warranties” means the warranties given by the Guarantor pursuant to Clause 10 and Schedule 4-A, and “Guarantor’s Warranty” means any one of them;

 

Hazardous Substances” has the meaning given to it in paragraph 12.1 of Schedule 4;

 

IFRS” means International Financial Reporting Standards as issued by the International Accounting Standards Board, the International Accounting Standards adopted by the International Accounting Standards Board, the Standing Interpretation Committee abstracts and the International Financial Reporting Interpretation Committee abstracts as adopted or issued by the International Financial Reporting Interpretation Committee, in each case, as are applicable to the Group Companies;

 

Indebtedness” means those line items and adjustments included in the “Indebtedness” column in the Estimated Closing Statement or the Final Closing Statement (as applicable), in each case, with reference to the relevant line items and adjustments in the Reference Balance Sheet;

 

Indian Tax Authority” means any relevant Tax Authority in India;

 

Individual Accounts” means individual balance sheets and the profit and loss accounts of the respective Group Companies for the respective periods set out in folders 3.1.4.4, 3.1.18.29.1.1 and 3.1.18.31.2.1 of the Data Room;

 

Intellectual Property Rights” means Patents, utility models, design rights, rights to inventions, copyrights and neighbouring and related rights, moral rights, trade marks and service marks, rights in trade names, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, computer systems, communication systems, database rights, rights to use and protect the confidentiality of confidential information (including Know-how), and all other intellectual property rights, in each case, whether registered or unregistered and including, where such rights are obtained or enhanced by registration, any registration of such rights, any applications and rights to apply for such registrations, and renewals or extensions of, and rights to claim priority from, such any registrations and applications, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

 

Intended To Be Used” means, as of the Closing Date, reasonably contemplated for use;

 

Internal Work Orders” means the documents listed in Schedule 13 and any other similar purchase or sale or services arrangements that fall under the category of (i) engineering services, (ii) manufacturing or (iii) procurement between any Group Company and any member of the Seller’s Group which are not material and which are made in the ordinary course of business, on an informal basis, from time to time;

 

Intra-Group Contracts” means any contract, transaction or arrangement, between one or more members of the Seller’s Group (other than a Group Company) and one or more Group Companies, with obligations still outstanding as at the close of business on the

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Closing Date, other than those relating to the Transitional Services Agreement, the Transitional Trade Mark Licence and any other arrangements entered into pursuant to this Agreement;

 

Know-how” means any confidential or proprietary information, including any trade secrets or similar forms of protection for confidential information, and other non-trivial industrial and commercial information, in each case, in any form and not in the public domain, including: formulae, recipes, specifications (including information regarding materials, ingredients, tools, apparatus, sources, vendors), procedures, processes, methods, techniques, ideas, concepts, creations, inventions and discoveries (whether patentable or unpatentable and whether or not reduced to practice), improvements, research and development, business and other methodologies, engineering and business information, technical data, designs, models, algorithms, subroutines, graphs, drawings, reports, analyses, test results, project reports and testing procedures, instruction and training manuals, tables of operating conditions, market forecasts, lists and particulars of customers and suppliers, and all tangible embodiments of the foregoing;

 

Licensed-back Intellectual Property” means any: (i) Non-Registered IP that exists, and is owned by a Group Company, immediately prior to Closing; and (ii) Transferring Non-Registered IP, in each case, which is used, or Intended To Be Used, prior to Closing in relation any products other than the CFB Products and any business other than business relating to the CFB Products (including where it is used in relation to any CFB Product also), but excluding any CFB Exclusive Non-Registered IP;

 

Liabilities” means any debts, obligations, Indebtedness, commitments or liabilities of any nature whatsoever, asserted or unasserted, known or unknown, liquidated or unliquidated, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise;

 

Licences-in” means the licence disclosed as Data Room document 3.2.8.1.3.1;

 

Licences-out” means those licences granted by Group Companies to third parties disclosed as Data Room documents 3.2.8.1.2.1.1, 3.2.8.1.2.1.2, 3.2.8.1.2.1.5, 3.2.8.1.2.1.6, 3.2.8.1.2.1.7, 3.2.8.1.2.1.8, 3.2.8.1.2.1.10, 3.2.8.1.2.1.17, 3.2.8.1.2.1.18, 3.2.8.1.2.3.1, 3.2.8.1.2.3.2 and 3.2.9.30.1.5;

 

Long Stop Date” means the date falling nine months after the date of this Agreement;

 

Losses” means all losses, liabilities, costs (including legal costs and experts’ and consultants’ fees), charges, expenses, actions, proceedings, claims and demands;

 

Major Contract” means:

 

(i)the Transferring Contracts;

 

(ii)any licences-out of Owned Business IPR relating to any CFB Product;

 

(iii)any licence-in agreements between a Group Company and a third party (being a person who is not an Affiliate of the Seller); or

 

(iv)any services agreements and client contracts between a Group Company and a third party (being a person who is not an Affiliate of the Seller) in relation to any Material Project;

 

Material Adverse Effect” means any material adverse effect on the turnover, profitability, financial or trading position or prospects of the Group Companies, other than on a short-term, cyclical or temporary basis and except to the extent caused by:

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(i)an event, change or circumstance affecting or likely to affect generally all companies carrying on similar businesses in countries in which the Group Companies carry on business;

 

(ii)the transactions contemplated by the Transaction Documents and the announcement and completion of such transactions;

 

(iii)changes in law, regulation or accounting standards or principles, or interpretations thereof, applicable to the Group Companies;

 

(iv)changes generally applicable to financial, economic, political or similar conditions (including acts of war, declared or undeclared, armed hostilities and terrorism);

 

(v)changes generally applicable to securities, commodities or other market conditions or prevailing interest rates; or

 

(vi)earthquakes, floods or natural disasters.

 

Material Contract” means:

 

(i)the Transferring Contracts;

 

(ii)any licences-out of Owned Business IPR relating to any CFB Product;

 

(iii)any licence-in agreements between a Group Company and a third party (being a person who is not an Affiliate of the Seller);

 

(iv)any services agreements and client contracts between a Group Company and a third party (being a person who is not an Affiliate of the Seller) involving, individually, or in a series of related agreements relating to the same counterparty and subject matter, aggregate annual payments in excess of US$1 million, or which is critical to the business of the Group;

 

(v)any agreement to which a Group Company is a party that involves an aggregate outstanding expenditure of more than US$2 million and a backlog of more than US$1 million; or

 

(vi)any agreement that is a partnership, joint venture or similar agreement to which a Group Company is a party (other than any agreement entered into by any Group Company with or in connection with a recognised trade association or similar body pursuant to which no Group Company has any liability or obligation except for the payment of annual subscription or membership fees);

 

Material Projects” means the projects set out in folder 3.2.5 of the Data Room, and “Material Project” means any one of them;

 

New Company Name” has the meaning given to it in Clause 8.1.2;

 

NewCos” means the entities to be incorporated in the United States; the Philippines, Brazil and Turkey pursuant to the Pre-Closing Reorganisation, and “NewCo” means any one of them;

 

Non-CFB Business” means any business of the Group Companies, except for the CFB Business, that is conducted by any member of the Group Companies prior to Closing;

 

Non-Registered IP means any Intellectual Property Rights but excluding any and all Registered IP;

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Non-Transferring Assets” means all of the shares held by the Seller or a member of the Seller’s Group in the China Manufacturing Joint Venture, Wuhan Chang Long Power Boiler Company Ltd., Amec Foster Wheeler Energia S.L.U. and Amec Foster Wheeler Consulting Poland Sp. z.o.o.;

 

Non-Transferring Contracts” means those contracts entered into by any member of the Group but which do not relate to the CFB Business and which are listed in Part 2 of Schedule 9, and “Non-Transferring Contract” means any one of them;

 

Order” means any order, injunction, judgment, decree, ruling, assessment, or arbitration award of any Governmental Entity or arbitrator;

 

Owned Business IPR” means the Owned Registered IPR, the Transferring Non-Registered IP, and any other Intellectual Property Rights owned by any Group Company immediately prior to Closing;

 

Owned Registered IPR” means the Owned Patents and the Owned Trade Marks;

 

Owned Patents” means the patents and patent applications listed in Part A and Part B of Schedule 11;

 

Owned Trade Marks” means the trade mark registrations listed under the heading “Owned Trade Marks” in Schedule 11;

 

Patents” means any granted patents and pending patent applications, together with all additions, divisionals, continuations, continuations-in-part, substitutions, reissues, re-examinations, extensions, registrations, patent term extensions, revalidations, supplementary protection certificates, and renewals of any of the foregoing, and all foreign applications and patents corresponding to or claiming priority from any of the foregoing;

 

PRC” means the People’s Republic of China;

 

PRC Tax Authority” means the State Administration of Taxation of the PRC and its local branches or any other relevant Tax Authority in the PRC;

 

Pre-Closing Reorganisation” means the transfer of the Transfer Employees, assets and liabilities of the CFB Business from the Retained Group to the Group Companies and the NewCos and the transfer of the assets and liabilities that do not relate to the CFB Business from the Group Companies to the Retained Group in accordance with the steps and terms and conditions set out in the Pre-Closing Reorganisation Plan;

 

Pre-Closing Reorganisation Plan” means the document attached hereto in the Annexure to this Agreement setting out the plan to implement the Pre-Closing Reorganisation in the Agreed Terms as of the date of this Agreement;

 

Proceeding” means any action, arbitration, audit, examination, investigation, hearing, litigation or suit (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, and whether public or private) commenced, brought, conducted or heard by, or before or otherwise involving, any Governmental Entity or arbitrator;

 

Properties” means the properties set out in folder 3.1.10 of the Data Room, and “Property” means any one of them;

 

Purchase Price” has the meaning given to it in Clause 3.1;

 

Purchaser’s Group” means the Purchaser and its Affiliates from time to time;

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Purchaser’s Warranties” means the warranties given by the Purchaser pursuant to Clause 10 and Schedule 5, and “Purchaser’s Warranty” means any one of them;

 

Reference Balance Sheet” means the aggregated balance sheet of the Group Companies as at 31 December 2016 as set out in Part 4 of Schedule 3;

 

Registered IP” means any registrations, or applications for registration, of any Intellectual Property Rights that are established by way of registration with competent authorities;

 

Relate Exclusively to the CFB Products” means relates to CFB Products only, and not to any other products;

 

Relief” has the meaning given to it in the Tax Indemnity;

 

Remedial Action” has the meaning given to that term in paragraph 1 of Part 1 of Schedule 6;

 

Reporting Accountants” means KPMG, New York or, if that firm is unable or unwilling to act in any matter referred to them under this Agreement, a firm of accountants to be agreed by the Seller and the Purchaser within seven days of a notice by one to the other requiring such agreement or failing such agreement to be nominated on the application of either of them by or on behalf of the President of the Institute of Chartered Accountants of England and Wales;

 

Retained Group” means the Seller’s Group other than the Group;

 

Seller Trade Marks” means any trade marks, services marks, business, company or trade names, logos, get-up, URLs or domain names (“Names”), in each case, owned or registered by any member of the Seller’s Group that comprise any of the marks AMEC FOSTER WHEELER, FOSTER WHEELER, Amec FW, AFW, FW, the FW keystone logo (as represented by United Kingdom trade mark registration number 851176), the Foster Wheeler ‘hot dog’ design logo (as represented by EU trade mark registration number 1111746) or the Amec Foster Wheeler ‘radial design’ logo (as represented by United Kingdom trade mark registration number 3068478), and any marks which are confusingly similar to such Names, but excluding any Owned Trade Marks;

 

Seller’s Group” means the Seller and its Affiliates from time to time;

 

Seller’s Group Insurance Policies” means all insurance policies (whether under policies maintained with third party insurers or any member of the Seller’s Group), other than Target Group Insurance Policies, maintained by the Seller’s Group, under which, immediately prior to the Closing Date, any Group Company is entitled to any benefit, and “Seller’s Group Insurance Policy” means any one of them;

 

Seller’s Warranties” means the warranties given by the Seller pursuant to Clause 10 and Schedule 4, and “Seller’s Warranty” means any one of them;

 

Senior Employee” means David Parham, Tomas Harju-Jenty, Bartosz Dudek, Gregory Szastok, Ellen Zhang, Jarmo Puumalainen, Jaroslaw Mlonka, Weigang Chen, Kari Kohvakka, Timo Jantti, Matti Maskuniitty and Jaako Riiali;

 

Seven Categories of Exclusive IP” means any materials (including software and data) that comprise or otherwise fall within the following categories: (i) Amigo Software; (ii) design drawings for CFB Products; (iii) design files for CFB Products; (iv) design data for CFB Products; (v) performance data for CFB Products; (vi) test data for CFB Products; and (vii) subject to Clause 5.7.8, the Engineering Manuals;

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Shares” means the 211 shares in the capital of the Company, being the entire issued share capital of the Company;

 

Specific Claim” means a claim by the Purchaser against the Seller or Guarantor (i) for breach of Seller’s Warranties or Guarantor’s Warranties, (ii) for breach of or under the Tax Indemnity or (iii) under the indemnities in accordance with Clause 7 and Schedule 6, and excludes claims for breach of AFW/Seller’s other obligations under this Agreement;

 

Specific Indemnity” means an indemnity specified in Clause 7;

 

Subsidiaries” means the companies listed in paragraph 2 of Schedule 1, and “Subsidiary” means any one of them;

 

Surviving Clauses” means Clauses 1, 15 and 18.2 to 18.18, and “Surviving Clause” means any one of them;

 

Target Group Insurance Policies” means all insurance policies held exclusively by and for the benefit of the Group Companies, and “Target Group Insurance Policy” means any one of them;

 

Tax Authority” means any taxing or other authority competent to impose any liability in respect of Taxation or responsible for the administration and/or collection of Taxation or enforcement of any law in relation to Taxation;

 

Tax Claim” means a claim against the Seller for breach of paragraph 15 of Schedule 4 or for breach of or under the Tax Indemnity;

 

Tax Document” has the meaning given to it in the Tax Indemnity;

 

Tax Indemnity” means the deed of covenant against Taxation in the Agreed Terms to be entered into at Closing;

 

Taxation” or “Tax” means all forms of taxation (other than any accounting provision for deferred tax) and statutory, governmental, state, provincial, local governmental or municipal impositions, fees, tariffs, duties, contributions (including social security contributions), deductions, withholdings, charges, levies, including also advances, in each case in the nature of tax, social security premiums and other public dues, whether levied or imposed by reference to income, profits, gains, net wealth, asset values, turnover, added value, purchase price and other applicable costs or otherwise and shall further include payments to a Tax Authority or withholding on account of Tax (but not, for the avoidance of doubt, payments to a court or tribunal on account of Tax), in each case of anywhere in the world whenever and wherever imposed and whether chargeable directly or primarily or by way of withholding against or attributable directly or primarily to a Group Company or any other person and all penalties and interest relating thereto;

 

Third Party Claim” has the meaning given in Clause 12.5;

 

Third Party Consents” means any permissions, consents, approvals, agreements, authorisations or waivers (excluding the Governmental Authorisations) required from the relevant third party counterparties for the transaction contemplated hereunder, including assignment, transfer or novation to the relevant Group Company of the Transferring Contracts or to the relevant member of the Retained Group of the Non-Transferring Contracts, and “Third Party Consent” means any one of them;

 

Transaction Documents” means this Agreement, the Disclosure Letter, the Transitional Services Agreement, the Transitional Trade Mark Licence and the Tax Indemnity, and all

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documents entered into pursuant to this Agreement, and “Transaction Document” means any one of them;

 

Transfer Employee” means any directors, officers and employees wholly or mainly assigned to the CFB Business immediately prior to completion of the Pre-Closing Reorganisation but not employed or engaged by the Group prior to the date of completion of the Pre-Closing Reorganisation who will become employed or otherwise engaged within the Group (either by transfer pursuant to the Transfer Regulations or by offer and acceptance or as appropriate in light of local legislation, custom or practice) on completion of the Pre-Closing Reorganisation;

 

Transfer Regulations” means any laws and regulations of any jurisdictions in which one or more Transfer Employees are employed providing for the automatic transfer of employment of employees on a transfer of undertaking;

 

Transferring Contract” means those contracts entered into by any member of the Retained Group, but relating to the CFB Business and listed in Part 1 of Schedule 9, and “Transferring Contract” means any one of them;

 

Transferring Non-Registered IP” means any Non-Registered IP that exists, and is owned by a member of the Retained Group, immediately prior to Closing, and is used, or Intended To Be Used, in relation to any CFB Product, including underlying data, databases and the results of research and development relating to the CFB Products (including in respect of metallurgical technologies), but excluding any and all rights in any Seller Trade Mark and any China Manufacturing JV IP;

 

Transitional Services Agreement” means the agreement between Amec Foster Wheeler E&C Services Inc., the Purchaser and the Company entered into on the date of this Agreement in respect of the provision of certain services by the Retained Group to the Group Companies;

 

Transitional Trade Mark Licence” means the agreement between the Seller and the Purchaser, in the Agreed Terms, to be entered into at Closing pursuant to which certain Seller Trade Marks are licensed for use in relation to the CFB Business for a transitional period;

 

US Dollars” or “US$” means the lawful currency of the United States of America, from time to time;

 

VAT” means, within the European Union, such Taxation as may be levied in accordance with (but subject to derogations from) the Directive 2006/112/EC and, outside the European Union, any similar Taxation levied by reference to added value or sales; and

 

Working Capital” means those line items and adjustments included in the “Working Capital” column in the Estimated Closing Statement or the Final Closing Statement (as applicable), in each case with reference to the relevant line items and adjustments identified in the Reference Balance Sheet.

 

1.2Shares

 

References to shares shall include, where relevant, quotas.

 

1.3Singular, Plural, Gender

 

References to one gender include all genders and references to the singular include the plural and vice versa.

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1.4References to Persons and Companies

 

References to:

 

1.4.1a person include any company, partnership or unincorporated association (whether or not having separate legal personality); and

 

1.4.2a company include any company, corporation or any body corporate, wherever incorporated.

 

1.5References to Subsidiaries and Holding Companies

 

A company is a “subsidiary” of another company (its “holding company”) if that other company, directly or indirectly, through one or more subsidiaries:

 

1.5.1holds a majority of the voting rights in it;

 

1.5.2is a member or shareholder of it and has the right to appoint or remove a majority of its board of directors or equivalent managing body;

 

1.5.3is a member or shareholder of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; or

 

1.5.4has the right to exercise a dominant influence over it, for example by having the right to give directions with respect to its operating and financial policies, with which directions its directors are obliged to comply.

 

1.6Schedules etc.

 

References to this Agreement shall include any Recitals and Schedules to it and references to Clauses and Schedules are to Clauses of, and Schedules to, this Agreement. References to paragraphs and Parts are to paragraphs and Parts of the Schedules.

 

1.7Reference to Documents

 

References to any document (including this Agreement), or to a provision in a document, shall be construed as a reference to such document or provision as amended, supplemented, modified, restated or novated from time to time.

 

1.8Information

 

References to books, records or other information mean books, records or other information in any form, including paper, electronically stored data, electronic communications, magnetic media, film and microfilm.

 

1.9Non-limiting Effect of Words

 

The words “including”, “include”, “in particular” and words of similar effect shall not be deemed to limit the general effect of the words which precede them.

 

1.10Legal Terms

 

References to any English legal term shall, in respect of any jurisdiction other than England, be construed as references to the term or concept which most nearly corresponds to it in that jurisdiction.

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1.11Currency Conversion

 

Any amount to be converted from one currency into another currency for the purposes of this Agreement shall be converted into an equivalent amount at the Conversion Rate prevailing at the Relevant Date. For the purposes of this Clause:

 

Conversion Rate” means the close spot mid-trade composite (London) rate for a transaction between the two currencies in question as quoted on Bloomberg on the Business Day immediately preceding the Relevant Date or, if no such rate is quoted on that date, on the preceding date on which such rates are quoted;

 

Relevant Date” means, save as otherwise provided in this Agreement, the date on which a payment or an assessment is to be made, save that, for the following purposes, the date shall mean:

 

(i)for the purposes of Clause 5, the date of the relevant transaction;

 

(ii)for the purposes of Clause 11 and Schedule 7, the date at which the Purchaser makes a claim;

 

(iii)for the purposes of Clause 9 and Schedule 3, the Closing Date;

 

(iv)for the purposes of Clause 6.4, the Condition Fulfilment Date (as defined below); and

 

(v)for the purposes of the monetary amounts set out in Schedule 4, the date at which the Seller’s Warranty is expressed to be true and accurate.

 

1.12References to Days

 

A reference to a day, as opposed to Business Day, means a reference to a calendar day.

 

2Sale and Purchase of the Shares

 

2.1On and subject to the terms of this Agreement, with effect from Closing, the Seller shall sell and transfer, and the Purchaser shall purchase and accept the transfer of the full legal and beneficial interest in the Shares, including all accrued rights and free from all Encumbrances and with full title guarantee.

 

2.2On Closing, the Shares shall be transferred by the Seller to the Purchaser together with all rights and advantages attaching to them as at Closing (including the right to receive all dividends or distributions declared, made or paid on or after Closing).

 

2.3The Seller shall procure that on or prior to Closing, any and all rights or restrictions conferred upon it or any other person which may exist in relation to the Shares are waived irrevocably by the persons entitled thereto.

 

3Consideration

 

3.1Amount

 

The aggregate consideration for the purchase of the Shares under this Agreement (the “Purchase Price”) shall be an amount in US Dollars equal to:

 

3.1.1US$170,000,000 (the “Enterprise Value”);

 

plus

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3.1.2the Closing Cash;

 

minus

 

3.1.3the Closing Indebtedness;

 

plus or minus

 

3.1.4the Closing Working Capital Adjustment.

 

3.2Payment of Purchase Price

 

The Purchase Price shall be paid by way of cash payments pursuant to Clauses 6.3 and 9.3.

 

3.3Treatment of Payments

 

If any payment is made by the Seller to the Purchaser in respect of any Claim or pursuant to an indemnity or covenant to pay under any agreement entered into under this Agreement or the Tax Indemnity, the payment shall be treated as an adjustment of the consideration paid by the Purchaser for the Shares under this Agreement and the consideration shall be deemed to have been reduced by the amount of such payment.

 

4Conditions

 

4.1Conditions Precedent to Purchaser’s Obligations

 

The obligations of the Purchaser to consummate Closing as set forth in Clause 6 shall be subject to the fulfilment or the Purchaser’s waiver, at or prior to the Closing Date, of each of the following conditions:

 

4.1.1the unconditional competition law clearances required for the purchase and sale of the Shares contemplated hereunder from the Competition Authorities in Bulgaria, Republic of Korea, the Philippines, Poland, Russia and Turkey having been obtained;

 

4.1.2save for the completion of any actions which require the consent of any third party and the liquidation of Wuhan Chang Long Power Boiler Company Ltd., the Pre-Closing Reorganisation having been completed in accordance with the Pre-Closing Reorganisation Plan (the “Pre-Closing Reorganisation Condition”);

 

4.1.3since the date of this Agreement, no event or change having occurred which has had or is likely to have a Material Adverse Effect;

 

4.1.4the Seller’s Warranties being true and correct in all respects (in the case of any warranty qualified by materiality) or in all material respects (in the case of any warranty not qualified by materiality) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects), except where the failure of such warranties to be true and correct would not have a Material Adverse Effect on the CFB Business; for the avoidance of doubt, any and all updates of the Seller’s Warranties made in accordance with Clause 5.10 to be disregarded for the purpose of application of this Clause 4.1.4; provided, that, only for the purpose of this Clause 4.1.4, a Material Adverse Effect shall mean any material adverse effect on the turnover, profitability, financial or trading position or
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prospects of the Group Companies, other than on a short-term, cyclical or temporary basis and except to the extent caused by:

 

(i)an event, change or circumstance affecting or likely to affect generally all companies carrying on similar businesses in countries in which the Group Companies carry on business;

 

(ii)the transactions contemplated by the Transaction Documents and the announcement and completion of such transactions;

 

(iii)changes in law, regulation or accounting standards or principles, or interpretations thereof, applicable to the Group Companies;

 

(iv)changes generally applicable to financial, economic, political or similar conditions (excluding acts of war, declared or undeclared, armed hostilities and terrorism); or

 

(v)changes generally applicable to securities, commodities or other market conditions or prevailing interest rates; and

 

4.1.5the Seller not having breached its obligations in Clause 5.1 so as to have a material adverse effect on the Group.

 

4.2Conditions Precedent to Seller’s Obligations

 

The obligations of the Seller to consummate the Closing as set forth in Clause 6 shall be subject to the fulfilment or the Seller’s waiver, at or prior to the Closing, of

 

4.2.1the unconditional competition law clearances required for the purchase and sale of the Shares contemplated hereunder from the Competition Authorities in Bulgaria, Republic of Korea, the Philippines, Poland, Russia and Turkey having been obtained;

 

4.2.2the Purchaser’s Warranties being true and correct in all respects (in the case of any warranty qualified by materiality) or in all material respects (in the case of any warranty not qualified by materiality) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects); and

 

4.2.3the Purchaser having duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to Closing.

 

4.3Responsibility for Satisfaction

 

4.3.1In order to satisfy the conditions in Clauses 4.1.1 and 4.2.1 (the “Antitrust Conditions”):

 

(i)The Purchaser and the Seller have made a filing in the Philippines required under the competition laws in the Philippines and the Purchaser further undertakes to make full, complete and accurate filings, notices and requests for authorisations with the other relevant Competition Authorities as soon as practicable after the date of this Agreement and, in any event, within any term provided for under the applicable antitrust laws, and shall promptly provide any additional information and documentary material that
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may be requested by any of the relevant Competition Authorities to ensure satisfaction of the Antitrust Conditions.

 

(ii)The Purchaser shall use commercially reasonable endeavours to do all things necessary or appropriate under Applicable Law and regulations to ensure satisfaction of the Antitrust Conditions as soon as possible.

 

(iii)The Purchaser undertakes to keep the Seller reasonably informed as to its progress towards satisfaction of the Antitrust Conditions. Without limiting the generality of the foregoing, the Purchaser further undertakes to:

 

(a)notify the Seller as soon as reasonably practicable regarding, and provide copies of, any written communications and material oral communications from any Competition Authority in relation to obtaining any consent, approval or action where such communications have not been simultaneously supplied to the Seller;

 

(b)promptly provide the Seller with draft copies of all submissions and written communications to the Competition Authorities in relation to obtaining any consent, approval or action at such time as will allow the Seller a fully satisfactory opportunity to provide comments on such submissions and communications before they are submitted or sent, and take account of the Seller’s reasonable comments in relation to the form and content of such submissions and communications, and provide the Seller with copies of all such submissions and communications at the same time and in the same form finally submitted or sent (save that in relation to all disclosures to the Seller under this Clause, the Purchaser may redact business secrets and other confidential material and such information shall be provided on an outside counsel-to-counsel, confidential basis); and

 

(c)where reasonably requested by the Seller and where permitted by the Competition Authorities, allow persons nominated by the Seller to attend all meetings with the Competition Authorities and to make oral submissions at such meetings.

 

4.3.2AFW/Seller shall achieve satisfaction of the Pre-Closing Reorganisation Condition except in respect of obtaining Third Party Consents, and shall use its commercially reasonable endeavours to obtain the Third Party Consents, as soon as reasonably practicable after the date of this Agreement and in any event before the Long Stop Date. AFW/Seller shall not make any material amendment to or deviation from the Pre-Closing Reorganisation Plan without the prior written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If AFW/Seller determines a price for a transaction in the Pre-Closing Reorganisation Plan of which the value of transfer is not the book value (e.g. price based on discounted cash flow calculation or a third-party appraisal) or makes a non-material amendment to or deviation from the Pre-Closing Reorganisation Plan which is not subject to the prior written consent of the Purchaser under this Clause 4.3.2, AFW/Seller shall notify the Purchaser of such price or amendment or deviation in advance.
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4.3.3Without limiting the foregoing, the Guarantor, the Seller and the Purchaser shall use their respective commercially reasonable endeavours to achieve satisfaction of the conditions.

 

4.3.4The Purchaser shall give notice to the Seller of the satisfaction of each of the Antitrust Conditions within two Business Days of becoming aware of the same.

 

4.3.5The Seller shall give notice to the Purchaser of the satisfaction of the Pre-Closing Reorganisation Condition within two Business Days of becoming aware of the same.

 

4.4Co-operation

 

4.4.1The Seller shall provide reasonable assistance to the Purchaser in obtaining satisfaction of the Antitrust Conditions, including:

 

(i)providing all information and documents reasonably requested by the Purchaser for the purpose of the merger control notifications listed under the Antitrust Conditions (including sharing, on an outside counsel-to-counsel, confidential basis, any necessary documents or information that contain confidential information which should not be shared with the Purchaser);

 

(ii)co-operating with the Purchaser and providing promptly all information and assistance reasonably required in relation to all requests for information and enquiries from any Competition Authority; and

 

(iii)confirming, if necessary and required by the Purchaser, representations to be submitted to any Competition Authority identified under the Antitrust Conditions above.

 

4.4.2The Seller shall also keep the Purchaser reasonably informed of any written or material oral communications which the Seller may have with any Competition Authority.

 

4.4.3The Purchaser shall use commercially reasonable endeavours to assist AFW/Seller to satisfy the Pre-Closing Reorganisation Condition where AFW/Seller reasonably requests.

 

4.4.4The Purchaser shall use commercially reasonable endeavours to assist the AFW/Seller in obtaining the Third Party Consents, including providing all information and documents reasonably requested by the Seller for the purpose of obtaining the Third Party Consents (including sharing, on an outside counsel-to-counsel, confidential basis, any necessary document or information that contain confidential information which should not be shared with the Seller).

 

4.4.5AFW/Seller shall keep the Purchaser reasonably informed of any written or material oral communications which the Seller’s Group may have with any third party in connection with the Pre-Closing Reorganisation.

 

4.5Non-Satisfaction

 

The Seller or the Purchaser shall have the right, in their sole discretion, and without prejudice to their right to claim damages or other compensation for any prior breach of this Agreement, by notice in writing to the other party to terminate this Agreement (other than the Surviving Clauses) if the conditions in Clauses 4.1 and 4.2, as applicable, are not

20

satisfied on or before the Long Stop Date, provided, however, that the right to terminate this Agreement under this Clause 4.5 shall not be available to the Purchaser or the Seller (as the case may be) if the failure by the Purchaser or the Seller (as the case may be) to perform its obligations under this Clause 4 has been the cause of, or resulted in the failure of, Closing to occur on or before the Long Stop Date.

 

5Pre-Closing

 

5.1Seller’s Obligations in Relation to the Conduct of Business

 

5.1.1Subject to Clause 5.2, the Seller shall procure that between the date of this Agreement and Closing each Group Company shall carry on its business with due care and in compliance with all Applicable Laws as a going concern in the ordinary course of business consistent with past practice as carried on prior to the date of this Agreement, save as otherwise permitted with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, the Seller shall procure that the Group Companies shall, in each case in the ordinary course of business consistent with past practice:

 

(i)use reasonable endeavours to preserve and maintain all of the Governmental Authorisations held by them;

 

(ii)pay their debts, Taxes and other obligations when due;

 

(iii)maintain the properties and tangible assets which are material to the business of the Group Companies and which are owned, occupied or used by them, subject to normal wear and tear, in good repair and condition and in reasonable working order having regard to their age and use;

 

(iv)preserve the Intellectual Property Rights and other intangible assets owned by them, including by filing applications for Registered IP in the name of Group Companies when patent protection is considered to be appropriate, continuing to prosecute any applications for Owned Registered IPR and maintaining the confidence of any Non-Registered IP owned by them;

 

(v)continue the research and development activities relevant to the CFB Products as carried on prior to the date of this Agreement;

 

(vi)perform their obligations under all contracts to which they are party relating to or affecting their properties, assets, personnel or business; and

 

(vii)maintain their books and records.

 

5.1.2Without prejudice to the generality of Clause 5.1.1 and subject to Clause 5.2, the Seller undertakes to procure that between the date of this Agreement and Closing each Group Company shall not, without the prior written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed:

 

(i)enter into any agreement or incur any commitment involving any capital expenditure in excess of US$1 million per item and US$5 million in aggregate, in each case exclusive of VAT;

 

(ii)enter into any agreement or incur any commitment involving any non-capital expenditure in excess of US$1 million per item exclusive of VAT,
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other than procurement of materials for projects in the ordinary course of business consistent with past practice;

 

(iii)make any proposal or submit any bid for any potential project, for which the contract price exceeds US$10 million;

 

(iv)enter into, settle or amend in any material respect any agreement or incur any commitment which is not capable of being terminated without compensation at any time with 12 months’ notice or less and which involves or may involve total annual expenditure in excess of US$1 million, exclusive of VAT;

 

(v)enter into, amend or terminate any Material Contracts of a type not explicitly referred to elsewhere in this Clause 5.1.2;

 

(vi)acquire or agree to acquire, sell or agree to sell, any share, shares or other interest in any company, partnership or other venture or establish or liquidate a subsidiary save as required to effect the Pre-Closing Reorganisation;

 

(vii)acquire or agree to acquire any assets in excess of US$5 million, save as required to effect the Pre-Closing Reorganisation and other than for the procurement of materials for projects in the ordinary course of business consistent with past practice;

 

(viii)sell or otherwise dispose of or agree to sell or otherwise dispose of any assets in excess of US$200,000, save as required to effect the Pre-Closing Reorganisation and other than for the sale of products or its components for projects in the ordinary course of business consistent with past practice;

 

(ix)incur any additional borrowings or incur any other indebtedness in the nature of borrowings;

 

(x)create, allot or issue, or grant an option to subscribe for, any share capital of any Group Company, save as required to effect the Pre-Closing Reorganisation;

 

(xi)repay, redeem or repurchase any share capital of any Group Company;

 

(xii)institute or settle any Proceedings that would be applicable to any Group Company (other than Proceedings in respect of Tax provided that the Seller and the Group Company are acting in good faith in the best interests of the Group Company in instituting or settling such Proceedings), provided that the Seller shall give prior notice to the Purchaser regarding such tax Proceedings;

 

(xiii)create any Encumbrance over or otherwise dispose of any Owned Business IPR or any other Intellectual Property Rights owned by the Group Companies, other than the granting of spot licences of any Owned Business IPR in relation to CFB Products pursuant to the Licences-out or the licence agreements listed in Section B of Part 1 of Schedule 9, in the ordinary course of business consistent with past practice; provided, however, the Seller shall promptly inform the Purchaser of each such spot licence and procure that each such spot licence shall, to the extent not entered into by a Group Company as licensor, be transferred to the Group
22

Company that is the transferee of the licence listed in Section B of Part 1 of Schedule 9 associated with such spot licence;

 

(xiv)permit any Owned Registered IPR to lapse as a result of a failure to pay any renewal fees that fall due other than as stipulated in Schedule 11;

 

(xv)save as required by law:

 

(a)make any material amendment to the terms and conditions of engagement or employment of any of its directors, officers or employees save (A) as required in accordance with the policies, procedures, benefit plans or compensation plans generally applicable to the Seller’s Group or the Group as in effect on the date hereof; (B) as required by any applicable collective bargaining agreement; (C) as required by the Purchaser in writing; or (D) as required in order to effect the Pre-Closing Reorganisation;

 

(b)dismiss any director, officer or employee other than for gross misconduct or other cause or save as required to effect the Pre-Closing Reorganisation;

 

(xvi)create any Encumbrance over any of its Properties or any other material assets or undertakings;

 

(xvii)amend its constitutional documents, internal rules in relation to the authorities and responsibilities of high level organisations and senior level employees and officers, internal rules of the board of directors or similar bodies, policy for internal control for governance, material rules related to human resources, and policies and methodologies for Taxes except as required by Applicable Law or to comply with accounting policies and practice applicable to the Group Company concerned; and

 

(xviii)to the extent compliant with Applicable Laws, develop a new business plan for the Group Companies or amend the existing business plan of the Group Companies other than making or updating a budget plan in the ordinary course of business consistent with past practice.

 

5.2Exceptions to Seller’s Obligations in Relation to the Conduct of Business

 

Clause 5.1 shall not operate so as to prevent or restrict:

 

5.2.1any matter reasonably undertaken by any member of the Group in an emergency or disaster situation with the intention of minimising any adverse effect of such situation in relation to the Group or the Seller’s Group, provided that the Seller shall notify of the Purchaser of such situation as soon as practicably possible and shall discuss with the Purchaser regarding any such matter to be undertaken to respond to such situation;

 

5.2.2any act or omission required to comply with any Applicable Law;

 

5.2.3any action to the extent required to be taken pursuant to this Agreement, the Pre-Closing Reorganisation Plan or the other Transaction Documents, or to assign or otherwise transfer any Seller Trade Mark to a member of the Retained Group;

 

5.2.4any action required pursuant to a binding agreement existing at the date of this Agreement, provided, that the Seller shall give prior notice to the Purchaser
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regarding the action to be taken pursuant to the relevant agreement if such action would fall under any items in Clause 5.1.2 unless such action or agreement has been disclosed to the Purchaser through the Disclosure Letter or the Data Room;

 

5.2.5any action undertaken at the written request, or with the written consent, of the Purchaser; or

 

5.2.6repayments of any amount of the intra-group receivables or intra-group payables owed by a member of the Seller’s Group (other than a Group Company) to a Group Company or vice versa.

 

5.3Cash Extraction

 

5.3.1The Seller shall procure that all the financial transactions between the Retained Group and the Group Companies under the Seller’s Group cash management system and any other intercompany loans between the Retained Group and the Group Companies shall be unwound and any balance therefrom will be fully settled prior to Closing.

 

5.3.2The Purchaser and the Seller shall discuss as soon as practicable following the date of this Agreement the target Cash Balances to be retained in the Group Companies at Closing, and the Seller shall use reasonable endeavours to ensure that at least such amount is retained in the Group Companies at Closing.

 

5.3.3The Seller shall, so far as practicable and to the extent permitted by Applicable Law, between the date of this Agreement and Closing, procure that the Group Companies shall achieve a Cash Extraction of any Cash Balances for each Group Company in excess of the target Cash Balances determined pursuant to Clause 5.3.2.

 

5.4Transition Steering Committee

 

Pending Closing, the Seller and the Purchaser shall form a transition steering committee consisting of representatives nominated by each of the Seller and the Purchaser and procure that such representatives meet in person or by telephone conference as frequently as may be necessary to discuss progress on satisfaction of the conditions in Clause 4, the implementation of the Pre-Closing Reorganisation Plan, material new business of the Group, the matters referred to in Clause 5.1, updates with respect to the determination of any valuations for each transaction contemplated by the Pre-Closing Reorganisation Plan, and other transition issues.

 

5.5Insurance

 

5.5.1Without prejudice to the generality of Clause 5.1.1, between the date of this Agreement and Closing, AFW/Seller shall and/or shall procure that the relevant members of the Seller’s Group shall maintain in force all Target Group Insurance Policies and all Seller’s Group Insurance Policies for the benefit of the Group Companies.

 

5.5.2Prior to Closing, the Seller shall, to the extent practicable, make a claim under any Seller’s Group Insurance Policy in respect of any event, act or omission relating to any Group Company that occurred or existed prior to the Closing Date that is covered by a Seller’s Group Insurance Policy. The Seller’s obligation to make a claim under this Clause 5.5.2 shall only apply to the extent that a reasonable owner of a similar business to the Seller’s Group, which was not the subject of a sale
24

process, would make a claim in such circumstances. If the event, act or omission giving rise to such claim is not treated as Indebtedness, the proceeds and the right to receive the proceeds the Group Company is entitled to are not considered in the price adjustment as per Clause 3.

 

5.6Asbestos Survey and Remedial Action

 

The Seller shall take reasonable steps to:

 

(i)instruct an independent environmental consultant jointly with the Purchaser (on terms to be agreed between the parties) to produce the Asbestos Survey; and

 

(ii)to the extent necessary, instruct a third party environmental consultant or contractor to perform any relevant Remedial Action,

 

in each case in accordance with paragraph 10 of Part 1 of Schedule 6.

 

5.7Pre-Closing Reorganisation

 

5.7.1Prior to Closing, AFW/Seller shall (except in respect of obtaining Third Party Consents where Clause 4.3.2 shall apply) implement the Pre-Closing Reorganisation in accordance with this Agreement and Applicable Law.

 

5.7.2The Purchaser shall co-operate with AFW/Seller to facilitate the Pre-Closing Reorganisation in accordance with and pursuant to the Pre-Closing Reorganisation Plan.

 

5.7.3AFW/Seller shall effect the transfer of the Transfer Employees in accordance with and subject to the terms and conditions set out in the Pre-Closing Reorganisation Plan and the Purchaser shall co-operate with AFW/Seller to facilitate such transfer.

 

5.7.4AFW/Seller shall provide to the Purchaser copies of any material documents necessary to implement the Pre-Closing Reorganisation as soon as reasonably practicable following execution of such material document (redacted, if necessary to remove information that does not solely relate to the CFB Business and which is confidential to the Seller but such redacted information to be shared, on an outside counsel-to-counsel, confidential basis).

 

5.7.5As part of the Pre-Closing Reorganisation and in accordance with, the Pre-Closing Reorganisation Plan, prior to Closing:

 

(i)on and subject to the terms of this Agreement, AFW/Seller shall procure the transfer to the relevant Group Company of the rights (subject to the burden) of each relevant member of the Retained Group arising under the Transferring Contracts on the terms set out in Part 1 of Schedule 10; and

 

(ii)on and subject to the terms of this Agreement, AFW/Seller shall procure the transfer to a member of the Retained Group of the rights (subject to the burden) of each relevant member of the Group arising under the Non-Transferring Contracts on the terms set out in Part 2 of Schedule 10.

 

5.7.6Prior to Closing, the Seller shall, and shall procure that each relevant member of the Seller’s Group shall:

 

(i)execute an irrevocable assignment pursuant to which all of its right, title and interest in and to the Owned Patents listed in Part A of Schedule 11 is assigned to Amec Foster Wheeler Energia Oy, and file all necessary forms
25

at, and pay any fees required by, the relevant intellectual property offices and registries for the recordal of the change of title of each such assigned Owned Patent; and

 

(ii)execute an irrevocable assignment pursuant to which all of its right, title and interest in and to any Transferring Non-Registered IP owned by it is assigned to Amec Foster Wheeler Energia Oy on the Closing Date.

 

5.7.7As soon as practicable following the date of this Agreement, but in any event prior to the Closing Date, the Purchaser and the Seller shall each nominate three (3) individuals who shall, at times and at places mutually acceptable to each party, meet in person to identify:

 

(i)materials (including software and data) that comprise or otherwise fall within the Seven Categories of Exclusive IP;

 

(ii)those parts of each Engineering Manual covered by Clauses 5.7.8(i) and (ii); and

 

(iii)any other materials protected by any: (a) Non-Registered IP that exists and is owned by a Group Company; or (b) Transferring Non-Registered IP, in each case, that Relate Exclusively to the CFB Products.

 

The Seller’s nominees must include at least one technical expert from Amec Foster Wheeler Energia Oy.

 

5.7.8The Seller and the Purchaser acknowledge and agree that while each Engineering Manual as an entire document (in whatever medium) forms part of the CFB Exclusive Non-Registered IP, there are parts of each Engineering Manual that either:

 

(i)cover general principles of science or physics or common engineering or design knowledge or otherwise publicly available information; or

 

(ii)at the date of this Agreement, form part or parts of engineering and/or design manuals used by the Seller’s Group for products that are not CFB Products and that do not Relate Exclusively to the CFB Products.

 

The Purchaser agrees that the inclusion of the Engineering Manuals as part of the CFB Exclusive Non-Registered IP does not result in those parts of the Engineering Manuals covered by Clauses 5.7.8(i) and (ii) forming part of the CFB Exclusive Non-Registered IP or prevent or otherwise restrict the Seller’s Group’s use of such parts pursuant to Clause 8.4.2.

 

5.7.9By no later than the Closing Date, the Seller shall have notified the Purchaser in writing of those of its Affiliates that perform the Aftermarket Services Business in Canada, United States or Mexico (the “Aftermarket Affiliates”).

 

5.8Other Seller’s Obligations Prior to Closing

 

5.8.1Without prejudice to the generality of Clauses 5.1.1 and 5.6, prior to Closing, the Seller shall keep the Purchaser informed of any material steps and the development of the Pre-Closing Reorganisation Plan through the transition steering committee or otherwise. The Seller shall, and shall procure that the relevant members of the Seller’s Group shall, allow the Purchaser and its agents, upon reasonable notice, reasonable access to and, with the prior consent of the Seller
26

(which shall not be unreasonably withheld, conditioned or delayed), to take copies of, the books, records and documents of or relating in whole or in part to the Group, provided that the obligations of the Seller under this Clause shall not extend to allowing access to information which is (i) reasonably regarded as confidential to the activities of the Seller’s Group and the Seller otherwise than in relation to the Group Companies or (ii) commercially sensitive information of the Group Companies if such information cannot be shared with the Purchaser prior to Closing in compliance with Applicable Law.

 

5.8.2The Seller shall provide the Purchaser with the balance sheets and the profit and loss accounts of the CFB Business (reflecting, for the avoidance of doubt, any part thereof conducted by any member of the Retained Group), as at the end of each month between the date hereof and the Closing Date, as soon as reasonably practicable following the end of the relevant month (the Seller shall use reasonable endeavours to provide such balance sheets and the profit and loss accounts of the CFB Business within 15 Business Days from the end of the relevant month).

 

5.9Release of Guarantees

 

5.9.1The Purchaser shall procure by Closing or, to the extent not done by Closing, as soon as practicably possible (provided that the Seller and the Purchaser shall agree on a fixed deadline as soon as practicably possible after the date of this Agreement) thereafter, the release of the Seller or any member of the Retained Group from any securities, guarantees, indemnities or similar assurances against financial loss given by or binding upon the Seller or any member of the Retained Group, being any securities, guarantees, indemnities or similar assurances against financial loss set out in Schedule 12, in respect of: (a) any liability of any of the Group Companies; (b) any guarantees, indemnities, bonds, letters of credit or any other instruments issued by a bank or financial institution in respect of any liability of any of the Group Companies; or (c) any guarantees, indemnities or similar assurances against financial loss in respect of any item referred to in paragraph (b) above (the “Seller Obligations”). Pending such release and following Closing, the Purchaser shall indemnify the Seller and any member of the Retained Group and any person connected with any of them against all amounts paid by any of them pursuant to any Seller Obligations (including any costs related to any Seller Obligations), if and to the extent such amounts are paid after Closing without prejudice to all other rights or remedies available to the Purchaser.

 

5.9.2Each of the Guarantor and the Seller shall procure, by Closing the release of the Group Companies from any securities, foreign exchange transactions, guarantees, indemnities or similar assurances against financial loss given by or binding upon the Group Companies in respect of any liability of the Seller or any member of the Retained Group set out in Schedule 12.

 

5.10Updating Disclosure Letter

 

Except as otherwise provided herein, until two Business Days prior to the Closing Date, the Seller may and shall update the information contained in the Schedules and the folders in the Data Room referenced in the Seller’s Warranties so as to reflect any events having occurred after the date hereof that affect such information and provide the Purchaser with the updated information in writing. Upon receipt of such updated information by the Purchaser, the relevant Seller’s Warranties shall be deemed to have been updated

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accordingly in relation to the effect of the Seller’s Warranties as of the Closing Date, provided that disclosure of any new claim, defect or dispute arising from the contracts with the clients or subcontractors of the CFB Business shall not be deemed to update disclosure against the relevant Seller’s Warranties in paragraph 13.3 of Schedule 4. For the avoidance of doubt, such update of the Seller’s Warranties reflecting the events having occurred after the date hereof shall not affect (i) the Seller’s Warranties as of the date hereof or (ii) the determination of the satisfaction of the conditions precedent to the Purchaser’s obligations to consummate Closing set forth in Clause 4.1.

 

5.11Completion of Remaining Transaction Documents

 

Each of AFW/Seller and the Purchaser shall use their respective commercially reasonable endeavours to procure that all the Agreed Terms for all the Transaction Documents to be executed among the relevant parties concerned in the Agreed Terms that have not been fully agreed upon as of the date hereof shall be duly agreed upon and such Transaction Documents shall be timely executed in the Agreed Terms.

 

5.12Tax Administration

 

5.12.1The Seller or its duly authorised agents shall until Closing deal with all matters concerning the Taxation of a Group Company including, without limitation, any correspondence, enquiry, dispute, audit, negotiation or settlement involving any Tax Authority in respect of any period or part of a period prior to Closing (“Pre-Closing Tax Matters”) and shall, at the Seller’s cost (provided that the Seller shall not be required to reimburse any Group Company for internal management time):

 

(i)prepare, submit and deal with prior to Closing (or procure the preparation and submission of and dealing with) all computations and returns relating to Taxation of each Group Company; and

 

(ii)prepare, submit and deal with prior to Closing (or procure the preparation and submission of and dealing with) all claims, elections, surrenders, disclaimers, statements, notices and consents for Taxation purposes of each Group Company,

 

in respect of which the last day for submission of such computation, return, claim, election, surrender, disclaimer, statement, notice or consent within any applicable statutory time limit and without incurring interest or penalties is prior to Closing.

 

5.12.2The Seller shall procure that:

 

(i)the Purchaser is kept fully informed of the progress of all matters relating to the Taxation affairs of the Group Companies for which the Seller is responsible under this Clause 5.12, other than matters that are immaterial;

 

(ii)the Purchaser receives copies of, or extracts from, all written correspondence to, or from, any Tax Authority insofar as it is relevant to the matters referred to in Clause 5.12.2(i), other than correspondence that is immaterial;

 

(iii)the Purchaser receives drafts of any documents which are to be submitted pursuant to Clause 5.12.1(i) or 5.12.2(i) (“Pre-Closing Tax Documents”). If a time limit applies in relation to the submission of any Pre-Closing Tax Document, the Seller shall ensure that the Purchaser receives the Pre-
28

Closing Tax Document no later than fifteen (15) Business Days before the expiry of the time limit;

 

(iv)the Purchaser is consulted fully in relation to the matters referred to in Clause 5.12.2(i) and any reasonable written comments of the Purchaser are incorporated, provided the Purchaser’s comments are received no later than five (5) Business Days after the draft Pre-Closing Tax Document has been received by the Purchaser pursuant to Clause 5.12.2(iii); and

 

(v)no Pre-Closing Tax Document nor any other document relating to the Taxation of a Group Company is submitted to any Tax Authority which is not true and accurate in all material respects or is misleading.

 

5.12.3The Seller agrees to devote reasonable resources prior to Closing to dealing with the Taxation affairs of the Group Companies, and shall use reasonable endeavours to ensure that they are finalised as soon as reasonably practicable.

 

5.12.4Neither the Seller nor any Group Company shall be required by this Clause 5.12 to take any action which it reasonably considers will require it (or any member of the Seller’s Group) to engage in fraudulent conduct, conduct involving dishonesty or the commission of, or participation in, any criminal offence or will result in any officer or employee of any Group Company or any member of the Seller’s Group committing a fiscal penal offence in Poland or give rise to fiscal-penal responsibility in Poland.

 

6Closing

 

6.1Date and Place

 

Subject to Clause 4, Closing shall take place in Amsterdam, the Netherlands, on the last Business Day of the calendar month which comes first after the lapse of a period of ten (10) Business Days following the date on which the conditions set out in Clause 4.1 (other than conditions which, by their nature, are to be satisfied on the Closing Date) shall have been satisfied or waived and the conditions set out in Clause 4.2 (other than conditions which, by their nature, are to be satisfied on the Closing Date) shall have been satisfied or waived (the “Condition Fulfilment Date”), or at such other location, time or date as may be agreed between the Purchaser and the Seller in writing, provided that the conditions set out in Clauses 4.1 and 4.2, except for those having been waived, shall have remained satisfied at the time of Closing.

 

6.2Closing Events

 

On Closing, the parties shall comply with their respective obligations specified in Schedule 2. The Seller may waive some or all of the obligations of the Purchaser as set out in Schedule 2 and the Purchaser may waive some or all of the obligations of the Seller as set out in Schedule 2.

 

6.3Payment on Closing

 

On Closing, the Purchaser shall pay (in accordance with Clause 18.6) an amount in cleared funds to the Seller (the “Completion Payment Amount”) which is equal to:

 

6.3.1the Enterprise Value;

 

plus

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6.3.2the Estimated Cash;

 

minus

 

6.3.3the Estimated Indebtedness;

 

plus or minus

 

6.3.4the Estimated Working Capital Adjustment.

 

6.4Estimated Closing Statement

 

Eight Business Days prior to Closing or five Business Days after the Condition Fulfilment Date, whichever comes later, the Seller shall deliver to the Purchaser the Estimated Closing Statement.

 

6.5Breach of Closing Obligations

 

If either the Seller or the Purchaser fails to comply with any material obligation in Clauses 6.2 and 6.3 and paragraphs 1 and 2 of Schedule 2, the Purchaser, in the case of non-compliance by the Seller, or the Seller, in the case of non-compliance by the Purchaser, shall, in each case acting reasonably in good faith, be entitled (in addition to and without prejudice to all other rights or remedies available) by written notice to the Seller or the Purchaser (as the case may be), served on the Closing Date:

 

6.5.1to terminate this Agreement (other than the Surviving Clauses) without liability on their part or on the part of those on whose behalf such notice is served; or

 

6.5.2to effect Closing so far as practicable having regard to the defaults which have occurred; or

 

6.5.3to fix a new date for Closing (not later than the last Business Day of the month following the month which the agreed date for Closing falls under) in which case the provisions of Schedule 2 shall apply to Closing as so deferred but provided such deferral may only occur once.

 

6.6Termination of Intra-Group Contracts

 

6.6.1Except in respect of any document or arrangement to be entered into pursuant to the Pre-Closing Reorganisation Plan or as may otherwise be agreed between the Seller and the Purchaser, AFW/Seller shall, and shall procure that the relevant members of the Seller’s Group shall, and the Purchaser shall procure that the relevant members of the Group shall, terminate all Intra-Group Contracts (other than the Internal Work Orders), in such a way (i) that all accrued receivables and payables in respect of the Intra-Group Contracts shall be paid or settled and (ii) that other rights, liabilities and obligations under the Intra-Group Contracts shall be satisfied such that no member of the Seller’s Group or Group Company shall have any ongoing rights, liabilities or obligations under the Intra-Group Contracts. To the extent that any Intra-Group Contracts cannot be terminated on Closing, AFW/Seller and the Purchaser (i) agree that the terms and conditions as set out in Schedule 15 shall apply to such Intra-Group Contracts thereafter until their termination and (ii) shall use their respective commercially reasonable endeavours to procure such termination as soon as practicable following Closing.

 

6.6.2The Seller and the Purchaser agree that the terms and conditions as set out in Schedule 16 shall apply to the back office services to be provided after Closing by
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Amec Foster Wheeler Energia Polska Sp. z.o.o. to Amec Foster Wheeler Consulting Poland Sp. z.o.o.

 

6.6.3The Seller agrees to update the list of Internal Work Orders in Schedule 13 by five Business Days prior to Closing to reflect any such purchase or sale or service arrangements between any Group Company and any member of the Seller’s Group which are terminated, fully performed or documented after the date of this Agreement.

 

7Special Indemnity

 

7.1The provisions of Part 1 of Schedule 6 shall apply in respect of Asbestos.

 

7.2The provisions of Part 2 of Schedule 6 shall apply in respect of any Losses arising from the Excluded CFB Business that remain with or are transferred to the Retained Group.

 

7.3The provisions of Part 3 of Schedule 6 shall apply in respect of any Losses arising from claims and disputes set forth therein.

 

7.4The Seller shall bear the costs of the liquidation (or transfer out of the Group) of Wuhan Chang Long Power Boiler Company Ltd. and, if this liquidation or transfer is not complete by Closing, shall indemnify the Purchaser for the costs of the liquidation and any other Losses which the Purchaser may suffer by reason of Wuhan Chang Long Power Boiler Company Ltd. not having been fully liquidated or transferred out of the Group prior to Closing.

 

8Post-Closing Obligations

 

8.1Sumitomo FW

 

8.1.1The Seller acknowledges and agrees that, after Closing, the Purchaser may adopt, in the alternative:

 

(i)any of the names: “Sumitomo FW”, “Sumitomo SHI FW”, “Sumitomo (SHI) FW”, “Sumitomo Heavy Industries FW” or “SHI FW” (each a “New Company Name Option”); or

 

(ii)any other alternative name determined pursuant to Clause 8.1.2,

 

as, or as part of, any corporate or trading name of any member of the Purchaser’s Group (including any Group Company) or as a trade mark or service mark.

 

8.1.2If, after the date of this Agreement, the Purchaser is unable to secure its relevant internal approvals for the adoption and use of any New Company Name Option, the Purchaser shall promptly notify the Seller of an alternative name or names (to the extent that any such alternative name or names contains “FW”) for the Seller’s consent (such consent not to be unreasonably withheld, delayed or conditioned). The Seller agrees that on receipt of any notification from the Purchaser pursuant to this Clause 8.1.2, it will promptly seek its relevant internal approvals in respect of the Purchaser’s proposal. If the Seller does not approve any alternative name or names notified to the Seller, the Purchaser may notify the Seller of other alternative names for the Seller’s consent in accordance with this Clause 8.1.2. Any name approved by the Seller in accordance with this Clause 8.1.2 shall be a “New Substitute Company Name Option”, and the New Company Name Option or
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New Substitute Company Name Option selected by the Purchaser (and notified to the Seller) shall be the “New Company Name”.

 

8.1.3The Seller shall not, and shall procure that no member of the Retained Group shall, rely on any of its trade mark rights (registered or unregistered) to prevent use or registration of the New Company Name as, or as part of, any corporate or trading name of any member of the Purchaser’s Group (including any Group Company) or as a trade mark or service mark. If the Seller, or any member of the Retained Group, assigns it rights in any trade mark containing “FW” to a third party, the Seller shall, and shall procure that the relevant member of the Retained Group shall, ensure that the third party assignee undertakes not to rely on any such assigned rights to prevent use or registration of the New Company Name as, or as part of, any corporate or trading name of any member of the Purchaser’s Group (including any Group Company) or as a trade mark or service mark.

 

8.1.4The Purchaser shall not, and shall procure that no member of the Purchaser’s Group shall, rely on any trade mark rights (registered or unregistered) that it acquires in the New Company Name to prevent use or registration of any of the Seller Trade Marks by any member of the Retained Group or by any third party assignee of any of the Seller Trade Marks.

 

8.2Change of Company Names

 

Subject to Clause 8.1, as soon as reasonably practicable after Closing, and in any event no later than the date falling six (6) months immediately following the Closing Date, the Purchaser shall procure that the name of each Group Company incorporating any Seller Trade Mark shall be changed to a name which does not consist of, or otherwise incorporate, any Seller Trade Mark.

 

8.3Use of the Seller Trade Marks

 

8.3.1Except as otherwise expressly provided in the Transitional Trade Mark Licence and subject to Clauses 8.1, 8.2 and 8.3.2, from the Closing Date, the Purchaser shall, and shall procure that each member of the Purchaser’s Group (including each Group Company) shall:

 

(i)not:

 

(a)use or display any Names which include (in whole or in part) any Seller Trade Marks; or

 

(b)hold itself out as having any current affiliation with any member of the Seller’s Group; and

 

(ii)use commercially reasonable endeavours to have removed, obliterated or otherwise made invisible, by the date of termination or expiry of the Transitional Trade Mark Licence, all Seller Trade Marks from all assets and/or materials owned or used by, or on behalf of, any Group Company, including any business stationery (including letterhead, business cards, schedules, inventories, publicity releases and forms), buildings, interior décor items, fixtures and furnishings, displays, signs, design documents or drawings, manufacturing and other technical manuals, quality control manuals and documents, informational, promotional or marketing materials or brochures, bulletins and sales materials, websites, email, computer
32

software and systems. The costs associated with such removal and obliteration shall be borne by the Purchaser.

 

8.3.2Seller acknowledges and agrees that:

 

(i)each Group Company is permitted to: (a) continue making use of the Seller Trade Marks (excluding any logos, designs or stylised versions of the Seller Trade Marks) when referring to the former names of the Group Companies and the history of the CFB Products; and (b) use the Seller Trade Marks in any other manner that would not constitute an infringement of any Seller Trade Mark under the Applicable Law; and

 

(ii)no member of the Purchaser’s Group shall be obliged to remove or obliterate any Seller Trade Marks from any:

 

(a)executed agreements, or copies thereof, in existence prior to the Closing Date;

 

(b)design documents for past or pending projects in existence prior to the Closing Date;

 

(c)non-public-facing documents in existence prior to the Closing Date that are used for internal purposes only, and any engineering or technical manuals, or copies thereof, in existence prior to the Closing Date; or

 

(d)equipment (including finished installations and any materials related thereto) in existence, and in the possession of a customer, licensee or contractor of the Group, prior to the Closing Date.

 

8.4Intellectual Property Rights

 

8.4.1The Purchaser and AFW/Seller acknowledge and agree that all Owned Registered IPR and all Transferring Non-Registered IP that is not owned by a Group Company as of date of this Agreement, shall be assigned into the ownership of Amec Foster Wheeler Energia Oy, in the case of any relevant Owned Registered IPR, prior to Closing, and, in the case of any Transferring Non-Registered IP, on the Closing Date, in each case, in accordance with the Pre-Closing Reorganisation Plan.

 

8.4.2The Purchaser shall procure the grant by each relevant member of the Purchaser’s Group to the Seller, with effect from the Closing Date, a perpetual, irrevocable, non-exclusive, assignable (only in accordance with Clause 8.4.3(ii)), sub-licensable (only in accordance with Clause 8.4.3(i)), royalty-free licence to use the Licensed-back Intellectual Property, provided that any such use shall be limited to use solely for the purposes of, and in connection with, any products other than the CFB Products and any businesses other than any business relating to the CFB Products.

 

8.4.3The Seller may not assign or otherwise transfer or grant sub-licences in respect of all or any of its rights under the licences granted pursuant to Clause 8.4.2 without the prior written consent of the Purchaser save that the Seller may:

 

(i)sub-license any or all of its rights under the licences granted pursuant to Clause 8.4.2 to:
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(a)any member of the Retained Group (except for the China Manufacturing Joint Venture) while it remains an Affiliate of the Seller, but any such sub-licence shall automatically terminate if and when the sub-licensee ceases to be an Affiliate of the Seller;

 

(b)any purchaser of all or part of any business of the Seller’s Group that, immediately after Closing, benefits from the licence granted pursuant to Clause 8.4.2;

 

(c)any third party to whom a member of the Retained Group has, prior to the date of this Agreement, granted a licence to use the Licensed-back Intellectual Property in respect of products other than CFB Products and any businesses other than any business relating to the CFB Products; and

 

(d)any other third party for the purposes of use of the Licensed-back Intellectual Property in respect of products other than CFB Products or any businesses other than any business relating to the CFB Products only; and

 

(ii)assign any or all of its rights under the licences granted pursuant to Clause 8.4.2 to:

 

(a)any member of the Retained Group (except for the China Manufacturing Joint Venture) while it remains an Affiliate of the Seller, provided that prior to any assignee Affiliate ceasing to be an Affiliate of the Seller, such assignee shall assign all such rights to an Affiliate of the Seller; and

 

(b)any purchaser of all or part of any business of the Seller’s Group that, immediately after Closing, benefits from the licence granted pursuant to Clause 8.4.2.

 

8.4.4The Seller shall, and shall procure that each of its sub-licensees and assigns, whether direct or indirect (and all references to “sub-licensees” and “assigns” in this Clause 8.4.4 to Clause 8.4.6 shall be a reference to all sub-licensees and assigns whether direct or indirect), of the Licensed-back Intellectual Property shall:

 

(i)treat as strictly confidential, and be obliged to treat as confidential, any Licensed-back Intellectual Property that does not comprise general principles of science or physics or common engineering knowledge or otherwise publicly available information; and

 

(ii)use the Licensed-back Intellectual Property solely for the purposes of, and in connection with, any products other than the CFB Products and any businesses other than any business relating to the CFB Products.

 

8.4.5The Seller acknowledges and agrees that use by the Seller or any of its sub-licensees or assigns of the Licensed-back Intellectual Property in connection with the CFB Products or any business relating to the CFB Products, or any violation by the Seller of Clause 8.4.4, will cause irreparable damage to the Purchaser, and that the Purchaser will not have an adequate remedy at law, and consequently, the Purchaser is entitled to seek the remedies of preliminary and permanent injunctive relief and specific performance to prevent any threatened or actual usage of any of
34

the Licensed-back Intellectual Property in connection with the CFB Products or any business relating to the CFB Products, or any other threatened or actual violation of Clause 8.4.4, in any court and/or arbitral tribunal of competent jurisdiction, as the case may be.

 

8.4.6If the Purchaser reasonably believes that a third party is making, or is about to make, unauthorised use of the Licensed-back Intellectual Property in respect of CFB Products, the Purchaser may request that the Seller confirm to the Purchaser whether that third party is a sub-licensee or assignee of the Seller, and the Seller shall cooperate in confirming whether such third party is a sub-licensee or assignee of the Seller and in providing information as regards the scope of any licence it has granted to such third party or, where the Seller is able to disclose a copy of the relevant sub-licence agreement without breaching any duty of confidentiality owed to the relevant sub-licensee, by providing the Purchaser with a copy of the relevant sub-licence agreement.

 

8.4.7The Purchaser shall procure the grant by each relevant member of the Purchaser’s Group to the Seller, with effect from the Closing Date until, subject to Clause 8.4.8, the date falling five (5) years immediately following the Closing Date, a non-exclusive, non-assignable, sub-licensable (only in accordance with Clause 8.4.10), royalty-free licence to use the Owned Business IPR in respect of the Aftermarket Services Business for installations located in Canada, United States and Mexico only.

 

8.4.8The licence granted under and pursuant to Clause 8.4.7 (the “Aftermarket Services Licence”) shall terminate:

 

(i)automatically:

 

(a)on the date falling five (5) years immediately following the Closing Date; and

 

(b)in the event of a change of Control of the Seller resulting in the Seller no longer being an Affiliate of the Guarantor; and

 

(ii)immediately:

 

(a)if the Seller or any member of the Retained Group commits a material breach of any of Clauses 8.4.7 to 8.4.16 of this Agreement and, within sixty (60) days of receipt of written notice from the Purchaser to the Seller of such material breach specifying such breach, the Seller or the relevant member of the Retained Group fails to remedy such breach; and

 

(b)on at least three (3) months’ prior written notice from the Seller to the Purchaser.

 

8.4.9Promptly following termination of the Aftermarket Services Licence, the Seller shall take all appropriate steps to ensure that all copies, whether in written, electronic or other form or media, of the CFB Exclusive Non-Registered IP, including all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials that are a tangible embodiment of the CFB Exclusive Non-Registered IP, that were in the Seller’s or any member of the Retained Group’s possession prior to termination of the Aftermarket Services
35

Licence are, at the Purchaser’s instruction, destroyed or delivered to the Purchaser (or to any person nominated by the Purchaser), and the Seller shall provide the Purchaser with:

 

(i)a certificate, signed by the Seller, confirming that all copies (in whatever medium) of all materials that are a tangible embodiment of the CFB Exclusive Non-Registered IP that were in the possession of a member of the Retained Group have been destroyed or delivered to the Purchaser; and

 

(ii)a binding undertaking given to the Purchaser from, and signed by, each Aftermarket Affiliate and any of the Seller’s other Affiliates sub-licensed after Closing pursuant to Clause 8.4.10 (together the “ASB Sub-Licensees” and each a “ASB Sub-Licensee”), in each case, who has not separately given a direct undertaking to the Purchaser pursuant to Clause 8.4.13: (a) representing and warranting that all copies (in whatever medium) of all materials that are a tangible embodiment of the CFB Exclusive Non-Registered IP that were in its possession have been destroyed or delivered in accordance with the Purchaser’s instructions given to the Seller; (b) acknowledging that its licence to use any CFB Exclusive Non-Registered IP has terminated; (c) undertaking that it shall not use any CFB Exclusive Non-Registered IP; and (d) incorporating a dispute resolution provision equivalent to Clause 18.16.

 

For the avoidance of doubt, this Clause 8.4.9 shall oblige the Seller to destroy all copies of each Engineering Manual in its or any member of the Retained Group’s possession, but shall not require the destruction of those parts of any Engineering Manual covered by Clauses 5.7.8(i) and (ii).

 

8.4.10The Seller may sub-license any or all of its rights under the Aftermarket Services Licence to any Affiliate of the Seller (for the avoidance of doubt, except for the China Manufacturing Joint Venture) while it remains an Affiliate of the Seller, but any such sub-licence shall automatically terminate: (i) if and when the sub-licensee ceases to be an Affiliate of the Seller; and (ii) on termination of the Aftermarket Services Licence. The Seller shall notify the Purchaser in writing of all Affiliates (excluding the Aftermarket Affiliates) sub-licensed pursuant to this Clause 8.4.10 after the Closing Date. Where the term Affiliate is used in this Clause 8.4.10 and in Clauses 5.7.9, 8.4.9, 8.4.13 and 8.4.15, the terms “Control”, “is Controlled by” or “is under common Control” used in the definition of Affiliate shall mean through the ownership (directly or indirectly) of 100 per cent. of the voting securities of a person.

 

8.4.11The Seller shall, and shall procure that each ASB Sub-Licensee shall:

 

(i)treat as strictly confidential, and be obliged to treat as confidential, any CFB Exclusive Non-Registered IP that does not comprise general principles of science or physics or common engineering knowledge or otherwise publicly available information; and

 

(ii)use the CFB Exclusive Non-Registered IP solely for the purposes of, and in connection with, the Aftermarket Services Business for installations located in Canada, United States and Mexico only.
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8.4.12The Seller acknowledges and agrees that use by the Seller or any ASB Sub-Licensee of the CFB Exclusive Non-Registered IP in connection with any business other than the Aftermarket Services Business for installations located in Canada, United States and Mexico only, or any violation by the Seller of Clause 8.4.10, 8.4.11 or 8.4.13, will cause irreparable damage to the Purchaser, and that the Purchaser will not have an adequate remedy at law, and consequently, the Purchaser is entitled to seek the remedies of preliminary and permanent injunctive relief and specific performance to prevent any threatened or actual usage of any of the CFB Exclusive Non-Registered IP in connection with any business other than the Aftermarket Services Business for installations located in Canada, United States and Mexico only, or any other threatened or actual violation of Clause 8.4.10, 8.4.11 or 8.4.13, in any court and/or arbitral tribunal of competent jurisdiction, as the case may be.

 

8.4.13The Seller shall not, and shall procure that no ASB Sub-Licensee shall, without the prior written consent of the Purchaser, give any third party possession of any materials that are a tangible embodiment of the CFB Exclusive Non-Registered IP, but the Seller may give any of its sub-licensee Affiliates performing Aftermarket Service Business in Canada, United States or Mexico possession of such materials that are a tangible embodiment of the CFB Exclusive Non-Registered IP that are required for those Affiliates to perform Aftermarket Service Business in Canada, United States or Mexico and solely for the purposes of, and in connection with, performing such services, provided that prior to any such sub-licensee Affiliate ceasing to be an Affiliate of the Seller, such sub-licensee Affiliate shall, at the Purchaser’s instruction, destroy, or deliver to the Purchaser (or to any person nominated by the Purchaser), all copies (in whatever medium) of all materials that are a tangible embodiment of the CFB Exclusive Non-Registered IP in its possession, and the Seller shall procure that any such sub-licensee Affiliate shall give a binding undertaking to the Purchaser: (a) representing and warranting that all copies (in whatever medium) of all materials that are a tangible embodiment of the CFB Exclusive Non-Registered IP that were in its possession have been destroyed or delivered in accordance with the Purchaser’s instructions given to the Seller; (b) acknowledging that its licence to use any CFB Exclusive Non-Registered IP has terminated; (c) undertaking that it shall not use any CFB Exclusive Non-Registered IP; and (d) incorporating a dispute resolution provision equivalent to Clause 18.16. For the avoidance of doubt, this Clause 8.4.13 shall oblige the Seller to procure that each such sub-licensee Affiliate shall destroy all copies of each Engineering Manual in its possession, but shall not require the destruction of those parts of any Engineering Manual covered by Clauses 5.7.8(i) and (ii).

 

8.4.14The Seller shall execute a binding agreement with each ASB Sub-Licensee that gives the Purchaser the right to enforce equivalent terms to those provided under Clauses 8.4.11, 8.4.12 and 8.4.13 directly against the relevant ASB Sub-Licensee (each a “Direct Recourse Agreement”), and each such Direct Recourse Agreement shall: (i) incorporate a dispute resolution provision equivalent to Clause 18.16; and (ii) remain in full force and effect until such time as the ASB Sub-Licensee that is the party to the Direct Recourse Agreement has given the Purchaser an undertaking pursuant to either Clause 8.4.9(ii) or Clause 8.4.13, and on execution of such undertaking by the relevant ASB Sub-Licensee, its Direct Recourse Agreement shall automatically terminate.
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8.4.15The Seller agrees that during the term of Aftermarket Services Licence it shall:

 

(i)not sell the Aftermarket Services Business;

 

(ii)give the Purchaser at least two (2) weeks’ prior written notice before it (or any of its relevant Affiliates) bids for any new Aftermarket Services Business which is likely to result in a contract with a customer for aggregate payments to the Seller or its relevant Affiliate performing the Aftermarket Services Business equal to or in excess of US$1 million (excluding any payments relating to construction), which notice shall include details of: (a) the customer and location of the project that is the subject-matter of the bid; (b) details of the proposed scope of work to be performed by the Seller or its relevant Affiliate performing the Aftermarket Services Business; and (c) details of any significant modification work anticipated to be performed, and, where the Purchaser undertakes to the Seller that it will not submit a bid for the same project that is the subject-matter of the bid, the Seller shall additionally share with the Purchaser the details of how it proposes to achieve the scope of work for the project that is the subject-matter of the bid and provide a copy of the relevant proposal (including any technical specification) to be submitted in connection with the bid (but excluding details of any commercial information covering proposed contract terms and conditions and information relating to pricing) and, to the extent that the Purchaser has any questions or concerns relating to such information disclosed, the parties shall engage in good faith discussions in respect of the same;

 

(iii)report to the Purchaser in writing every six (6) months, the name and location of each customer for which Aftermarket Services Business has been performed during the preceding six (6) month period to which the relevant report relates (a “Live ASB Project”);

 

(iv)at the conclusion of each Live ASB Project, deliver to the Purchaser:

 

(a)(in a form and format to be mutually agreed between the parties) any and all performance or test data for CFB Products created during the course of that Live ASB Project; and

 

(b)at the Purchaser’s request, any and all “as built documents” in respect of such Live ASB Project, which documents the Seller shall procure may be used by the Purchaser without restriction.

 

8.4.16The Seller shall, and shall procure that each ASB Sub-Licensee shall, use its best endeavours to ensure that any tangible embodiments of the CFB Exclusive Non-Registered IP in its possession are kept physically separate from any tangible embodiments of the Licensed-back Intellectual Property in its possession.

 

8.4.17The Seller shall be responsible to the Purchaser for the acts and omissions of its permitted assigns and sub-licensees as if they were those of the Seller itself.

 

8.4.18The rights granted under and pursuant to Clauses 8.4.2 and 8.4.7 are rights to use intangible property only, and the Seller acknowledges that nothing in this Clause 8.4 shall oblige any member of the Purchaser’s Group to deliver, or otherwise provide, any physical materials, including any software (in computer readable form and/or human readable form), to any person.
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8.5Seller Post Closing Obligations

 

8.5.1For the period of 24 months following Closing, the Purchaser shall be entitled to notify the Seller if the Purchaser finds that the Group, together with the benefits of, and the rights under, the Transitional Services Agreement and the Transitional Trade Mark Licence, does not contain all of the assets, personnel, contracts and technology of the CFB Business, including Owned Business IPR (other than those of the Excluded CFB Business) (“Missing CFB Items”). On receipt of such notice, each of the Guarantor and the Seller shall transfer, or shall procure the transfer of, such Missing CFB Items to the relevant Group Company or, for Missing CFB Items that are not Owned Business IPR, otherwise take appropriate steps to ensure the relevant Group Company may use or enjoy the benefits of the Missing CFB Items as if the Seller was not in breach of the warranty it has provided in Schedule 4 to this effect.

 

8.5.2For a period of 24 months following Closing, the Seller shall remit or forward to the Purchaser promptly after receipt thereof any cash or an invoice wrongly received by a member of the Seller’s Group from customers or other persons (including other member of the Seller’s Group) in respect of business undertaken by the Purchaser’s Group (including the Group Companies) after Closing in relation to the CFB Business or in respect of payables or receivables owing from or to the Purchaser’s Group (including the Group Companies).

 

8.5.3For a period of 24 months following Closing, the Purchaser may request the Seller to remit to the Purchaser promptly after payment thereof any cash wrongly paid by a member of the Purchaser’s Group to customers or other persons in respect of payables owed by the Seller’s Group.

 

8.5.4AFW/Seller shall continue to use its commercially reasonable endeavours to obtain any Third Party Consents that will not have been obtained prior to Closing.

 

8.5.5Following Closing, AFW/Seller shall not, and shall procure that no member of the Retained Group shall, assign or license to any third party any Intellectual Property Rights in existence and owned by a member of the Retained Group on the Closing Date such as to enable any such third party assignee or licensee to prevent the Purchaser’s Group from exploiting the CFB Products in the manner in which they are exploited at Closing or in the twelve (12) months immediately prior to Closing.

 

8.5.6The Seller shall continue to take reasonable steps to:

 

(i)instruct an independent environmental consultant jointly with the Purchaser (on terms to be agreed between the parties) to produce the Asbestos Survey; and

 

(ii)instruct a third party environmental consultant or contractor to perform any relevant Remedial Action,

 

in each case in accordance with paragraph 10 of Part 1 of Schedule 6 to the extent that any relevant Asbestos Survey or necessary Remedial Action has not been completed prior to the Closing.

 

8.6Purchaser Post Closing Obligations

 

8.6.1For a period of 24 months following Closing, if the Seller or Purchaser finds that any property, right or asset not forming part of the CFB Business (“Missing Non-
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CFB Items”) has been transferred to the Purchaser in error, the Purchaser shall, on receipt of such notice, transfer such Missing Non-CFB Items to the Seller or a member of the Seller’s Group nominated by the Seller in the manner reasonably acceptable to the Purchaser.

 

8.6.2For a period of 24 months following Closing, the Purchaser shall remit or forward to the Seller promptly after receipt thereof any cash or an invoice wrongly received by a member of the Purchaser’s Group from customers or other persons (including other members of the Purchaser’s Group Company) in respect of business undertaken by the Seller’s Group in relation to any business that is not the CFB Business in respect of payables or receivables owing from or to the Seller’s Group.

 

8.6.3For a period of 24 months following Closing, the Seller may request the Purchaser to remit to the Seller promptly after payment thereof any cash wrongly paid by a member of the Seller’s Group to customers or other persons (including other members of the Purchaser’s Group) in respect of payables owed by the Purchaser’s Group (including the Group Companies).

 

8.7China Manufacturing Joint Venture

 

8.7.1For so long as any member of the Seller’s Group retains a majority shareholding in, and the right to appoint a majority of the board of directors of, the China Manufacturing Joint Venture:

 

(i)the Seller shall exercise its powers as shareholder to ensure that, prior to the Closing Date, the China Manufacturing Joint Venture shall comply with the terms of any existing contracts between the China Manufacturing Joint Venture and a Group Company;

 

(ii)the Seller shall use its reasonable endeavours to ensure that, on and from the Closing Date, the China Manufacturing Joint Venture shall comply with the terms of any existing contract(s) between the China Manufacturing Joint Venture and a Group Company; and

 

(iii)the Seller shall use its reasonable endeavours to procure that any contractual proposals which have been provided or will have been provided after Closing by the China Manufacturing Joint Venture to a Group Company and which remain valid as at the Closing Date will remain valid following the Closing Date until the expiry of the validity period specified in the relevant contractual proposal.

 

8.7.2In the event that any member of the Seller’s Group sells its majority shareholding in the China Manufacturing Joint Venture to another party, the Seller shall, to the extent it is permitted to do so, notify the Purchaser of such sale, as soon as reasonably practicable, after such sale has been agreed and shall, request that the purchaser of such majority shareholding in the China Manufacturing Joint Venture meet with the Purchaser.
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9Post-Closing Adjustments

 

9.1Closing Statement

 

The Purchaser shall procure that, as soon as practicable following Closing, there shall be drawn up a draft of the Final Closing Statement (the “Draft Closing Statement”) in accordance with Parts 1 and 2 of Schedule 3.

 

9.2Determination of Final Closing Statement

 

9.2.1The Draft Closing Statement as agreed or determined pursuant to Clause 9.1:

 

(i)shall constitute the Final Closing Statement for the purposes of this Agreement; and

 

(ii)shall be final and binding on the parties.

 

9.2.2The Final Closing Statement shall set out the Closing Working Capital Adjustment, the Closing Cash, the Closing Indebtedness and the Purchase Price.

 

9.3Adjustment to Purchase Price

 

9.3.1Cash Balances

 

If the Closing Cash:

 

(i)is less than the Estimated Cash, the Seller shall repay to the Purchaser an amount equal to the deficiency in the manner set out in Clause 9.4; or

 

(ii)is greater than the Estimated Cash, the Purchaser shall pay to the Seller an additional amount equal to the excess in the manner set out in Clause 9.4.

 

9.3.2Indebtedness

 

If the Closing Indebtedness:

 

(i)is greater than the Estimated Indebtedness, the Seller shall repay to the Purchaser an amount equal to the excess in the manner set out in Clause 9.4; or

 

(ii)is less than the Estimated Indebtedness, the Purchaser shall pay to the Seller an additional amount equal to the deficiency in the manner set out in Clause 9.4.

 

9.3.3Working Capital Adjustment

 

If the Closing Working Capital Adjustment:

 

(i)is less than the Estimated Working Capital Adjustment, the Seller shall repay to the Purchaser an amount equal to the deficiency in the manner set out in Clause 9.4; or

 

(ii)exceeds the Estimated Working Capital Adjustment, the Purchaser shall pay to the Seller an additional amount equal to the excess in the manner set out in Clause 9.4.
   
9.4Payment of Adjustments to Purchase Price

 

9.4.1If, pursuant to Clause 9.3, the aggregate of the amount of the payments due from the Seller to the Purchaser is greater than the aggregate of the amount of the
41

payments due from the Purchaser to the Seller by an amount of at least US$200,000, the Seller shall pay to the Purchaser an additional amount equal to such difference.

 

9.4.2If, pursuant to Clause 9.3, the aggregate of the amount of the payments due from the Seller to the Purchaser is less than the aggregate of the amount of the payments due from the Purchaser to the Seller by an amount of at least US$200,000, the Purchaser shall pay to the Seller an additional amount equal to such difference.

 

9.4.3For the avoidance of doubt, no adjustments to the Purchase Price are required pursuant to Clauses 9.4.1 and 9.4.2 to the extent that the aggregate of the amount of the payments due from the Seller to the Purchaser or from the Purchaser to the Seller is less than US$200,000.

 

9.5Interest

 

Any payment to be made in accordance with Clause 9.3 shall include interest thereon calculated from the Closing Date to the earlier of the date of payment or the Final Payment Date at a rate per annum of 1.5 per cent. Such interest shall accrue from day to day.

 

9.6Payment

 

9.6.1Any payment pursuant to Clause 9.3, and any interest payable pursuant to Clause 9.5, shall be made on or before the Final Payment Date.

 

9.6.2Where any payment is required to be made pursuant to Clause 9.3 or pursuant to Clause 9.5 (in relation to a payment pursuant to Clause 9.3) the payment made on account of the Purchase Price shall be reduced or increased accordingly.

 

10Warranties

 

10.1AFW/Seller’s Warranties

 

10.1.1Subject to Clause 10.2, the Guarantor warrants to the Purchaser that statements set out in Schedule 4-A are true and accurate as of the date of this Agreement and the Seller warrants to the Purchaser that the statements set out in Schedule 4 are true and accurate as of the date of this Agreement.

 

10.1.2The only Seller’s Warranties given:

 

(i)in respect of the Properties are those contained in paragraph 6.1 of Schedule 4 and each of the other Seller’s Warranties shall be deemed not to be given in respect of the Properties;

 

(ii)in respect of Intellectual Property Rights are those contained in paragraphs 4.1.1, 4.1.2, 7 and 9.5 of Schedule 4 and each of the other Seller’s Warranties shall be deemed not to be given in respect of Intellectual Property Rights;

 

(iii)in respect of employment or pension matters are those contained in paragraph 10 of Schedule 4 and each of the other Seller’s Warranties shall be deemed not to be given in respect of such matters;
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(iv)in respect of Environmental Matters are those contained in paragraph 12 of Schedule 4 and each of the other Seller’s Warranties shall be deemed not to be given in respect of Environmental Matters; and

 

(v)in respect of Tax matters are those contained in paragraphs 15 and 16 of Schedule 4 and each of the other Seller’s Warranties shall be deemed not to be given in respect of such matters.

 

10.1.3The Seller does not give or make any warranty or representation as to the accuracy of the forecasts, estimates, projections, statements of intent or statements of opinion provided to the Purchaser or any of its directors, officers, employees, agents or advisers on or prior to the date of this Agreement, including in the documents provided in the Data Room.

 

10.1.4Any Seller’s Warranty qualified by the expression “so far as the Seller is aware” or any similar expression shall, unless otherwise stated, be deemed to refer to the actual knowledge of the persons whose names are set out in Schedule 8 and shall not be qualified in the manner as so stated unless the Seller establishes that such person has made due and careful enquiries so as to verify the truth and accuracy of that Seller's Warranty.

 

10.2Seller’s Disclosures

 

10.2.1The Seller’s Warranties are subject to the following matters:

 

(i)any matter which is fairly and accurately disclosed or contained with sufficient details to enable the Purchaser to identify the nature, scope and risks of the matters disclosed in any Transaction Document, in the Disclosure Letter or in the documents listed in Schedule 1 of the Disclosure Letter which comprise all of the documents provided in the Data Room; and

 

(ii)all matters which would be revealed by making a search on the date which falls five Business Days before the date of this Agreement on the public file at the companies register or its equivalent for each of the Group Companies.

 

10.2.2References in the Disclosure Letter to paragraph numbers shall be to the paragraphs in Schedule 4 to which the disclosure is most likely to relate. Such references are given for convenience only and shall not limit the effect of any of the disclosures, each of which is made against each other Seller’s Warranty to the extent fairly and accurately disclosed in the context of that other Seller’s Warranty.

 

10.3Repeat of the Guarantor’s and Seller’s Warranties as at Closing

 

The Guarantor warrants to the Purchaser that the statements set out in Schedule 4-A are true and accurate as of the date of this Agreement and the Guarantor further warrants to the Purchaser that those will be true and accurate at Closing as if they had been repeated at Closing (except those warranties that address matters only as of a specified date). Subject to Clauses 5.10 and 10.2, the Seller further warrants to the Purchaser that all of the Seller’s Warranties will be true and accurate at Closing as if they had been repeated at Closing (except those warranties that address matters only as of a specified date).

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10.4The Purchaser’s Warranties

 

The Purchaser warrants to the Seller that the statements set out in Schedule 5 are true and accurate as of the date of this Agreement and the Purchaser further warrants to the Seller that those will be true and accurate at Closing as if they had been repeated at Closing (except those warranties that address matters only as of a specified date).

 

10.5The Seller undertakes to the Purchaser and to the Group Companies and their respective directors, officers, employees and agents to unconditionally waive any rights, remedies or claims which it may have against any Group Company or such respective directors, officers, employees and agents in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by the Group Companies or their respective directors, officers, employees or agents in connection with assisting the Seller in the giving of any Seller’s Warranty or the preparation of the Disclosure Letter. It is intended that any Group Company and any member of the Purchaser’s Group (and any of their respective directors, officers, employees or agents) shall be entitled to the benefit of the undertakings, releases and waivers provided for in this Clause for the purpose of, inter alia, the Contracts (Rights of Third Parties) Act 1999.

 

11Limitation of Liability

 

The provisions of Schedule 7 shall apply in accordance with and pursuant to the provisions set out therein.

 

12Claims

 

12.1Notification of Potential Claims

 

Without prejudice to the obligations of the Purchaser under Clause 12.2, if the Purchaser or any Group Company becomes aware of any fact, matter or circumstance that may give rise to a Claim (ignoring for these purposes the application of paragraph 1 of Schedule 7 or paragraph 2 of Schedule 7) (other than a Tax Claim), the Purchaser shall as soon as reasonably practicable, and in any event within 10 Business Days, give a notice in writing to the Seller setting out such information as is available to the Purchaser or Group Company in reasonable detail. Failure to give notice within such period shall not affect the rights of the Purchaser except to the extent that the Seller is prejudiced by the failure.

 

12.2Notification of Claims

 

Notice of any Claim (other than a Tax Claim) shall be given by the Purchaser to the Seller within the time limits specified in paragraph 1 of Schedule 7 and shall specify in reasonable detail the legal and factual basis of the Claim and the evidence on which the party relies (including where the Claim is the result of or in connection with a Third Party Claim, evidence of the Third Party Claim) and setting out the Purchaser’s estimate of the amount of Losses which are, or are to be, the subject of the Claim (including any Losses which are contingent on the occurrence of any future event).

 

12.3Commencement of Proceedings

 

Any Claim notified pursuant to Clause 12.2 shall (if it has not been previously satisfied, settled or withdrawn) be deemed to be irrevocably withdrawn 12 months after the notice is given pursuant to Clause 12.2, unless at the relevant time legal proceedings in respect of the relevant Claim have been commenced by being both issued and served, provided that:

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12.3.1in the case of a contingent liability, the 12 month period shall commence on the earlier of the date falling 18 months after the relevant time limit set out in paragraph 1 of Schedule 7 and the date the relevant contingent liability becomes an actual liability and is due and payable;

 

12.3.2in the case of an actual liability that is notified pursuant to Clause 12.2 but is dependent on a contingent liability becoming an actual liability in order for the threshold in paragraph 3 of Schedule 7 to be exceeded, the 12 month period shall commence on the earlier of the date falling 18 months after the relevant time limit set out in paragraph 1 of Schedule 7 and the date the relevant contingent liability becomes an actual liability and is due and payable; and

 

12.3.3where paragraph 12.2 of Schedule 7 applies, the 12 month period shall commence on the date the Purchaser has notified the Seller that all reasonable steps have been taken to enforce recovery against the relevant third parties, such notification having been made promptly upon the Purchaser having taken all reasonable steps.

 

12.4Investigation by the Seller

 

In connection with any matter or circumstance that may give rise to a Claim (other than a Tax Claim):

 

12.4.1subject to Clause 12.4.2, the Purchaser shall disclose to the Seller or its financial, accounting or legal advisers all books, records and information as it is reasonable to provide and which the Seller may reasonably request from time to time, and (subject to being paid all reasonable costs and expenses) give the Seller reasonable access to premises, assets and personnel, so as to enable the Seller to investigate the matter or circumstance alleged to give rise to the Claim and whether and to what extent any amount is payable in respect of such Claim subject to the Seller agreeing in such form as the Purchaser may reasonably require to keep all such information confidential and to use it only for the purpose of investigating and defending the Claim in question; and

 

12.4.2in respect of the indemnity set out in Clause 7, in the event of any inconsistency between the provisions of Schedule 6 and the terms of this Clause 12.4, the provisions of Schedule 6 shall prevail to the extent of such inconsistency.

 

12.5Conduct of Third Party Claims

 

If the matter or circumstance that may give rise to a Claim (other than a Tax Claim) is a result of or in connection with a claim by a third party (a “Third Party Claim”), then:

 

12.5.1subject to Clause 12.5.2:

 

(i)the Purchaser shall keep the Seller informed of any material steps and development in the conduct of the Third Party Claim;

 

(ii)no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any other member of the Purchaser’s Group (including, after Closing, the Group) and the Third Party Claim shall not be compromised, disposed of or settled without the prior written consent of the Seller, such consent not to be unreasonably withheld, conditioned or delayed;
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(iii)subject to the Seller reimbursing the Purchaser or other member of the Purchaser’s Group concerned all legal and professional costs and expenses that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that any other members of the Purchaser’s Group (including, after Closing, the Group) shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;

 

(iv)to the extent permitted by Applicable Law and in relation to any Claim other than under the indemnities set out in Clause 7 subject to prior written consent from the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed:

 

(a)the Seller may, at its own expense and in its discretion, take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim (including making counterclaims or other claims against third parties) in the name of and on behalf of the Purchaser or other member of the Purchaser’s Group concerned and to have the conduct and assume control over any related proceedings, negotiations or appeals, provided that the Seller shall keep the Purchaser informed of any material steps and development in the conduct of such Third Party Claims; and

 

(b)if any admission, compromise, disposal or settlement proposed by the Seller would have a material adverse effect on the business of the Group then the restrictions on admissions or compromise, disposal or settlement in relation to the Third Party Claim set out in Clause 12.5.1(ii) shall apply by replacing the Purchaser with the Seller where relevant;

 

(v)if the Seller has taken conduct of the Third Party Claim pursuant to Clause 12.5.1(iv), the Purchaser shall, and the Purchaser shall procure that any other member of the Purchaser’s Group shall give, subject to their being paid all costs and expenses, all such information and assistance which it is reasonable to give, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records, as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions; and

 

12.5.2in respect of the indemnities set out in Clause 7, in the event of any inconsistency between the provisions of Schedule 6 and the terms of Clause 12.5.1, the provisions of Schedule 6 shall prevail to the extent of such inconsistency.
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13Restrictions on the Seller

 

13.1Restrictions

 

The Seller undertakes to the Purchaser that:

 

13.1.1no company which forms part of the Retained Group will, in any Relevant Capacity during the Restricted Period, directly or indirectly, carry on, be engaged in or be economically interested in any Restricted Business; and

 

13.1.2no company which forms part of the Retained Group will, during the Restricted Period, induce or seek to induce any Employee to become employed whether as employee, consultant or otherwise by any company which forms part of the Retained Group, whether or not such Employee would thereby commit a breach of his or her contract of service. The placing of an advertisement of a post available to a member of the public generally and the recruitment of a person through an employment agency shall not constitute a breach of this Clause 13.1.2, provided that the Retained Group advises such agency not to approach any Employee.

 

13.2Exceptions

 

The restrictions in Clause 13.1 shall not operate to prohibit any member (or director or officer of any member) of the Retained Group from:

 

13.2.1carrying on or being engaged in any business other than the Restricted Business;

 

13.2.2in the ordinary course of the business operations of the Retained Group as an EPC Contractor or an owner of a plant project, purchasing and/or reselling any CFB Product and, in such circumstances, the relevant member of the Retained Group will, to the extent permitted by the relevant client of the Retained Group, obtain a quotation for the purchase of such CFB Product from the Purchaser;

 

13.2.3holding or being interested in up to 5 per cent. of the outstanding issued share capital of a company listed on any stock exchange;

 

13.2.4holding or being interested in up to 5 per cent. of the outstanding issued share capital of a company not listed on any stock exchange, provided that no member of the Retained Group exercises a management function or exercises material influence over the company;

 

13.2.5fulfilling any obligation pursuant to this Agreement and any agreement to be entered into pursuant to this Agreement;

 

13.2.6acquiring the whole or part of any business or the shares in any company, provided that the principal purpose of the acquisition is not to acquire a business or company which engages in the Restricted Business and that the turnover attributed to that part of the business or company which would otherwise cause a breach of Clause 13.1 is less than 10 per cent. of the total turnover of the business or company for the last financial year; provided, however, that such member of the Retained Group shall withdraw from or divest to a third party such business as soon as practically possible from such acquisition (and in any event within 3 years from the acquisition and, if such member of the Retained Group intends to divest to a third party such business, the Seller shall procure that such member of the Retained Group shall inform the Purchaser of such possible divestment in advance;
47
13.2.7conducting the Aftermarket Services Business for CFB Products located in United States, Canada, Mexico;

 

13.2.8conducting the China Manufacturing Joint Venture, including the manufacture of CFB Products to be provided to any Group Company and/or third parties;

 

13.2.9the sale by any member of the Retained Group of any interest in the China Manufacturing Joint Venture to a third party, including to any third party who is engaged in a Restricted Business;

 

13.2.10performing any contract excluded pursuant to Part 1 of Schedule 10 or any Non-Transferring Contract; and

 

13.2.11performing or conducting any aspect of the Excluded CFB Business.

 

13.3Reasonableness of Restrictions

 

The Seller agrees that the restrictions contained in this Clause are no greater than is reasonable and necessary for the protection of the interest of the Purchaser and the Group Companies but if any such restriction shall be held to be void but would be valid if deleted in part or reduced in application, such restriction shall apply with such deletion or modification as may be necessary to make it valid and enforceable.

 

13.4Interpretation

 

The following terms shall have the following meanings, respectively, in this Clause:

 

13.4.1Relevant Capacity” means for its own account or for that of any other person, firm or company (other than the Purchaser or its Affiliates);

 

13.4.2Restricted Business” means any business relating to research and development, engineering, procurement, manufacturing, selling, licensing, installation and aftermarket servicing of the CFB Products; and

 

13.4.3Restricted Period” means a period of three years commencing on Closing.

 

14Restrictions on the Purchaser

 

14.1Restrictions

 

The Purchaser undertakes to the Seller that:

 

14.1.1no company which forms part of the Purchaser’s Group will, in any Purchaser Relevant Capacity during the Purchaser Restricted Period, directly or indirectly, in the Purchaser Restricted Territory, carry on, be engaged in or be economically interested in any Purchaser Restricted Business;

 

14.1.2no company which forms part of the Purchaser’s Group will use any Intellectual Property Rights owned by the Purchaser’s Group for the purposes of, directly or indirectly, in the Purchaser Restricted Territory, carrying on or being engaged in any Purchaser Restricted Business; and

 

14.1.3no company which forms part of the Purchaser’s Group will, during the Purchaser Restricted Period, induce or seek to induce any employee of the Retained Group who is wholly or partly assigned to the Aftermarket Services Business to become employed whether as employee, consultant or otherwise by any company which forms part of the Purchaser’s Group or any Group Company, whether or not such
48

employee would thereby commit a breach of his or her contract of service. The placing of an advertisement of a post available to a member of the public generally and the recruitment of a person through an employment agency shall not constitute a breach of this Clause 14.1.3, provided that the Purchaser’s Group advises such agency not to approach any employee of the Retained Group who is wholly or partly assigned to the Aftermarket Services Business.

 

14.2Exceptions

 

The restrictions in Clause 14.1 shall not operate to prohibit any member (or director or officer of any member) of the Purchaser’s Group from:

 

14.2.1carrying on or being engaged in any business that is currently carried on or engaged in by the Purchaser’s Group within the twelve (12) months immediately prior to the date of this Agreement;

 

14.2.2research and development activities;

 

14.2.3carrying on or being engaged in any business other than the Purchaser Restricted Business;

 

14.2.4holding or being interested in up to 5 per cent. of the outstanding issued share capital of a company listed on any stock exchange;

 

14.2.5holding or being interested in up to 5 per cent. of the outstanding issued share capital of a company not listed on any stock exchange, provided that no member of the Purchaser’s Group exercises a management function or exercises material influence over the company;

 

14.2.6fulfilling any obligation pursuant to this Agreement and any agreement to be entered into pursuant to this Agreement; and

 

14.2.7acquiring the whole or part of any business or the shares in any company, provided that the principal purpose of the acquisition is not to acquire a business or company which engages in the Purchaser Restricted Business and that the turnover attributed to that part of the business or company which would otherwise cause a breach of Clause 14.1 is less than 10 per cent. of the total turnover of the business or company for the last financial year; provided, however, that such member of the Purchaser’s Group shall use reasonable endeavours to withdraw from or divest to a third party such business within 1 year from the acquisition.

 

14.3Reasonableness of Restrictions

 

The Purchaser agrees that the restrictions contained in this Clause are no greater than is reasonable and necessary for the protection of the interest of the Seller and the Retained Group, including to facilitate the sale by a member of the Seller’s Group of part of the Retained Group to a third party who would expect such restrictions to apply, but if any such restriction shall be held to be void but would be valid if deleted in part or reduced in application, such restriction shall apply with such deletion or modification as may be necessary to make it valid and enforceable.

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14.4Interpretation

 

The following terms shall have the following meanings, respectively, in this Clause:

 

14.4.1Purchaser Relevant Capacity” means for its own account or for that of any other person, firm or company (other than the Seller or its Affiliates);

 

14.4.2Purchaser Restricted Territory” means the countries and territories in which the Purchaser Restricted Business is carried on at Closing;

 

14.4.3Purchaser Restricted Business” means any business relating to the GPG Business other than the CFB Business and the Aftermarket Services Business; and

 

14.4.4Purchaser Restricted Period” means a period of three years commencing on Closing.

 

15Confidentiality

 

15.1Announcements

 

Other than any announcements in the Agreed Terms to be released by either party on the date of this Agreement, pending Closing, no announcement, communication or circular concerning the existence or the subject matter of this Agreement shall be made or issued by or on behalf of any member of the Seller’s Group or the Purchaser’s Group without the prior written approval of the Seller and the Purchaser (such consent not to be unreasonably withheld or delayed). This shall not affect any announcement, communication or circular required by law or any governmental or regulatory body or any consultation with or in respect of Employees and Transfer Employees required of the Seller or any member of the Seller’s Group by law or pursuant to any agreement with any employee representative body, or the rules of any stock exchange on which the shares of any party (or its holding company) are listed but the party with an obligation to make an announcement or communication or issue a circular (or whose holding company has such an obligation) shall consult with the other parties (or shall procure that its holding company consults with the other parties) insofar as is reasonably practicable before complying with such an obligation.

 

15.2Confidentiality

 

15.2.1This Clause shall be without prejudice to the Confidentiality Agreement, which agreement shall continue notwithstanding this Agreement.

 

15.2.2Subject to Clauses 15.1 and 15.2.3, each of the parties shall treat as strictly confidential, and not disclose or use, any information received or obtained as a result of entering into this Agreement (or any agreement entered into pursuant to this Agreement) which relates to:

 

(i)the existence and provisions of this Agreement and of any agreement entered into pursuant to this Agreement;

 

(ii)the negotiations relating to this Agreement (and any such other agreements);

 

(iii)(in the case of the Seller’s Group and the Seller) any information relating to the Group Companies following Closing and any other information relating to the business, financial or other affairs (including future plans and targets)
50

of the Purchaser’s Group including, after Closing, the Group Companies and the CFB Business; or

 

(iv)(in the case of the Purchaser) any information relating to the business, financial or other affairs (including future plans and targets) of the Seller’s Group, including, prior to Closing, the Group Companies.

 

15.2.3Clause 15.2.2 shall not prohibit disclosure or use of any information if and to the extent:

 

(i)the disclosure or use is required by law, any governmental or regulatory body or any stock exchange on which the shares of any party (or its holding company) are listed;

 

(ii)the disclosure or use is required to vest the full benefit of this Agreement in any party;

 

(iii)the disclosure or use is required for the purpose of any arbitral or judicial proceedings arising out of this Agreement or any other agreement entered into under or pursuant to this Agreement or in order to enable a determination to be made by the Reporting Accountants under this Agreement;

 

(iv)the disclosure is made to a Tax Authority in connection with the Tax affairs of the disclosing party or an Affiliate;

 

(v)the disclosure is made to professional advisers of any party on a need to know basis and on terms that such professional advisers undertake to comply with the provisions of Clause 15.2.2 in respect of such information as if they were a party to this Agreement;

 

(vi)the information is or becomes publicly available (other than by breach of the Confidentiality Agreement or of this Agreement);

 

(vii)the other party has given prior written approval to the disclosure or use; or

 

(viii)the information is independently developed after Closing,

 

provided that prior to disclosure or use of any information pursuant to Clause 15.2.3(i), (ii) or (iii), the party concerned shall, where not prohibited by law, promptly notify the other parties of such requirement with a view to providing the other parties with the opportunity to contest such disclosure or use or otherwise to agree the timing and content of such disclosure or use.

 

16Insurance

 

16.1No cover under Seller’s Group Insurance Policies from Closing

 

Subject to Clause 16.2, the Purchaser acknowledges and agrees that, from the Closing Date:

 

16.1.1no Group Company shall have or be entitled to the benefit of any Seller’s Group Insurance Policy in respect of any event, act or omission that (i) takes place after the Closing Date, or (ii) takes place prior to the Closing Date where no notification has been made prior to the Closing Date, without prejudice to the Seller’s obligation in Clause 5.5.2, and it shall be the sole responsibility of the Purchaser to
51

ensure that adequate insurances are put in place for the Group with effect from the Closing Date; and

 

16.1.2neither the Seller nor any member of the Seller’s Group shall be required to maintain any Seller’s Group Insurance Policy for the benefit of any Group Company.

 

16.2Existing claims under the Seller’s Group Insurance Policies

 

The Seller shall, at the written direction of the Purchaser, save to the extent that:

 

16.2.1the Group has already recovered in respect of the Losses in respect of which the claim is made;

 

16.2.2the Losses in respect of which the claim is made have been taken into account in the Final Closing Statement provided that such Losses have been included as Indebtedness; or

 

16.2.3payments have been made by the insurers directly to the relevant third party in respect of the Losses in respect of which the claim is made,

 

use commercially reasonable endeavours after Closing to recover all monies due from insurers in respect of any claim which has been notified to the insurers before Closing by or on behalf of any Group Company under any Seller’s Group Insurance Policy and shall pay any monies received in respect of such claim (after taking into account the applicable proportion (by reference to other claims made in the time period to which it applies) of any deductible or excess and less any Taxation suffered on the proceeds and any reasonable out-of-pocket costs or expenses suffered or incurred by the Seller or any member of the Seller’s Group in connection with such claim) to the Purchaser or, at the Purchaser’s written direction, to the relevant Group Company as soon as practicable after receipt by the Seller.

 

16.3Relationship with the Seller’s obligation under the warranty and indemnity clauses

 

Nothing in this Clause 16 shall qualify, affect or restrict in any way the Seller’s obligation under the Seller’s Warranties or Schedule 6 and the Purchaser shall be entitled to make a claim for any Losses; provided, however, that the Seller shall not be liable for such claim to the extent that the Losses in respect of such claim is made are actually recovered by the Seller’s Group Insurance Policy in accordance with this Clause 16.

 

17Guarantee

 

17.1Unconditional Guarantee

 

In consideration of the entry by the Purchaser into this Agreement, the Guarantor hereby unconditionally and irrevocably guarantees to the Purchaser the full and prompt payment by the Seller of all amounts due from it to the Purchaser under or pursuant to this Agreement, the Transitional Trade Mark Licence or the Tax Indemnity as and when they become due and payable pursuant to the terms of this Agreement or the Tax Indemnity, as applicable (the “Guaranteed Obligations”), to the extent of any limit on the liability of the Seller in this Agreement or the Tax Indemnity.

 

17.2Seller’s Default

 

If and whenever the Seller defaults for any reason whatsoever in the performance of any of the Guaranteed Obligations, the Guarantor shall forthwith upon demand unconditionally

52

perform (or procure performance of) and satisfy (or procure the satisfaction of) the Guaranteed Obligations in regard to which such default has been made in the manner prescribed by this Agreement or the Tax Indemnity and so that the same benefits shall be conferred on the Purchaser as it would have received if the Guaranteed Obligations had been duly performed and satisfied by the Seller.

 

17.3Continuing Guarantee

 

This guarantee is to be a continuing guarantee and accordingly is to remain in force until all the Guaranteed Obligations shall have been performed or satisfied. This guarantee is in addition to and without prejudice to and not in substitution for any rights or security which the Purchaser may now or hereafter have or hold for the performance and observance of the Guaranteed Obligations.

 

17.4Guarantor as Sole or Principal Obligor

 

As a separate and independent stipulation, the Guarantor agrees that any of the Guaranteed Obligations (including any monies payable) which may not be enforceable against or recoverable from the Seller by reason of any legal limitation, disability or incapacity on or of the Seller or the dissolution, amalgamation, reconstruction or reorganisation of the Seller or any other fact or circumstance (other than any limitation imposed by this Agreement or the Tax Indemnity) shall nevertheless be enforceable against and recoverable from the Guarantor as though the same had been incurred by the Guarantor and the Guarantor were the sole or principal obligor in respect thereof and shall be performed or paid by the Guarantor on demand.

 

17.5Guarantor’s Liability

 

The liability of the Guarantor under this Clause 17 shall not be affected, impaired, reduced or released by:

 

17.5.1any variation of the terms of the Guaranteed Obligations;

 

17.5.2any forbearance, neglect or delay in seeking performance of the Guaranteed Obligations or any granting of time for, or waiver in relation to, such performance;

 

17.5.3the illegality, invalidity or unenforceability of, or any defect in, any provision of this Agreement or the Tax Indemnity or the Seller’s obligations under either of them;

 

17.5.4any insolvency or similar proceedings; or

 

17.5.5any other fact or event which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release or a defence to a guarantor.

 

17.6Deferral of Guarantor’s Rights

 

Until all the Guaranteed Obligations have been irrevocably performed or satisfied and, unless the Purchaser otherwise directs, the Guarantor shall not exercise any rights which it may have by reason of performance by it of its obligations under this Clause 17.

 

18Other Provisions

 

18.1Further Assurances

 

18.1.1The Seller and the Purchaser shall, and shall use reasonable endeavours to procure that any necessary third party shall, from time to time execute such
53

documents and perform such acts and things as the Seller or the Purchaser may reasonably require to transfer the Shares to the Purchaser and to give the Seller and the Purchaser the full benefit of this Agreement.

 

18.1.2The Purchaser shall, and shall procure that the Purchaser’s Group shall, maintain any books, records, data and documents of the Group Companies to the extent they relate to the period prior to Closing in accordance with the Purchaser’s Group internal document preservation policy and shall, and shall procure that the relevant Group Companies shall, if reasonably requested by the Seller, their representatives or their legal and professional advisers, allow the Seller, their representatives or their legal and professional advisers access to, and the right to inspect and take a record of, any such books, records and documents at the Seller’s expense.

 

18.1.3To the extent that the provision of any information pursuant to Clause 18.1.2 is restricted by Applicable Law, the Purchaser shall, and shall procure that the relevant Group Companies shall, upon the request of the Seller, take reasonable steps available to enable the Purchaser or the relevant Group Companies to provide any such information to the Seller at the Seller’s expense.

 

18.1.4For a period of 10 years following Closing, if Shares are sold, assigned or otherwise disposed of, the Purchaser shall use its reasonable endeavours to procure that any third party purchaser will maintain any books, records, data and documents of the Group Companies to the extent they relate to (i) the period prior to Closing and (ii) accounting, taxation or any Claim and allow the Seller reasonable access to any such books, records and documents of the Group Companies relating to the period prior to Closing, including the right to take copies, at the Seller’s expense.

 

18.1.5Following Closing and subject to Applicable Law, subject to Clause 8.4.9 of this Agreement, the Seller shall be entitled to retain:

 

(i)copies of all books, records, documents, data and information of or relating to (a) financials or tax matters and (b) the period prior to Closing; and

 

(ii)ownership and control of all books, records, documents, data and information of or relating to the period prior to Closing relating to the financials and tax matters of the Retained Group, including the Excluded CFB Business.

 

18.1.6Following Closing, the Seller shall, and shall procure that the Seller’s Group shall, give relevant information to the Purchaser or the Group Companies, upon their reasonable request, in relation to the matters prior to Closing in relation to the Group Companies and relevant members of the Retained Group including Tax matters relating to the Group Companies but excluding Tax matters relating to the Retained Companies.

 

18.2Whole Agreement

 

18.2.1The Transaction Documents contain the whole agreement between the parties relating to the sale and purchase of the Shares to the exclusion of any terms implied by law which may be excluded by contract and supersede any previous written or oral agreement between the parties in relation to the sale and purchase of the Shares.
54
18.2.2The Purchaser acknowledges that, in entering into the Transaction Documents, it is not relying on any representation, warranty or undertaking not expressly incorporated into them.

 

18.2.3Each of the parties agrees and acknowledges that its only right and remedy in relation to any representation, warranty or undertaking made or given in or in connection with the Transaction Documents shall be for breach of the terms of the Transaction Documents and each of the parties waives all other rights and remedies (including rights and remedies to claim damages in tort or under statute or civil codes, or to (wholly or partly) rescind, nullify or terminate (whether by court or arbitral order or otherwise) the Transaction Documents) in relation to any such representation, warranty or undertaking.

 

18.2.4Nothing in this Clause 18.2 excludes or limits any liability for fraud or wilful misconduct.

 

18.3No Assignment

 

Except as otherwise expressly provided by this Agreement, no party may, without the prior written consent of the other parties, assign, grant any security interest over, hold on trust or otherwise transfer the benefit of the whole or any part of this Agreement.

 

18.4UK: Third Party Rights

 

A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of, or enjoy any benefit under, this Agreement.

 

18.5Variation

 

No variation of this Agreement shall be effective unless in writing and signed by or on behalf of each of the parties.

 

18.6Method of Payment

 

18.6.1Payments pursuant to this Agreement shall be settled by payments between the Seller and the Purchaser.

 

18.6.2Any payments pursuant to this Agreement shall be effected by crediting for same day value the account specified by the Seller or the Purchaser (as the case may be) on behalf of the party entitled to the payment (reasonably in advance and in sufficient detail to enable payment by telegraphic or other electronic means to be effected) on or before the due date for payment.

 

18.6.3Payment of a sum in accordance with this Clause 18.6 shall constitute a payment in full of the sum payable and shall be a good discharge to the payer (and those on whose behalf such payment is made) of the payer’s obligation to make such payment and the payer (and those on whose behalf such payment is made) shall not be obliged to see to the application of the payment as between those on whose behalf the payment is received.

 

18.7Costs

 

18.7.1The Seller shall bear all costs incurred by it in connection with the preparation and negotiation of, and the entry into, this Agreement, the Tax Indemnity and the sale of the Shares.
55


18.7.2The Purchaser shall bear all such costs incurred by it in connection with the preparation and negotiation of, and the entry into, this Agreement, the Tax Indemnity and the purchase of the Shares.

 

18.8Notarial Fees, Registration, Stamp and Transfer Taxes and Duties

 

The Purchaser shall bear the cost of all notarial fees and all registration, stamp and transfer taxes and duties or their equivalents in all jurisdictions where such fees, taxes and duties are payable as a result of the transactions contemplated by the Transaction Documents (other than (i) any such fees, taxes or duties payable in respect of the Pre-Closing Reorganisation, of which taxes and duties shall be borne by the Seller in accordance with the provisions of the Tax Indemnity and any other fees shall be borne by the Seller, and (ii) any income or corporation tax in respect of chargeable gains (whether levied by way of withholding or otherwise) for which the Seller is liable and responsible under the Applicable Laws which, to the extent applicable, shall be borne by the Seller in accordance with the provisions of the Tax Indemnity). The Purchaser shall be responsible for arranging the payment of all such fees, taxes and duties, including fulfilling any administrative or reporting obligation imposed by the jurisdiction in question in connection with such payment. The Purchaser shall indemnify the Seller or any other member of the Seller’s Group against any Losses suffered by the Seller or member of the Seller’s Group as a result of the Purchaser failing to comply with its obligations under this Clause 18.8.

 

18.9Interest

 

If the Seller or the Purchaser defaults in the payment when due of any sum payable under this Agreement, the liability of that party shall be increased to include interest on such sum from the date when such payment is due until the date of actual payment (as well after as before judgment) at a rate per annum of three per cent. Such interest shall accrue from day to day.

 

18.10Grossing-up

 

18.10.1All sums payable under this Agreement shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by law (save that this Clause 18.10.1 shall not apply to any deduction or withholding on account of Taxation imposed by the PRC or India which shall be dealt with in accordance with Clause 18.11). If any deductions or withholdings are required by law, the payer shall (except in the case of interest payable under Clause 9.5 or 18.9 and except for any payments made pursuant to Clause 8.5, 8.6, 16.2 or 18.10.3 or paragraph 12.3 of Schedule 7) be obliged to pay to the recipient such sum as will, after such deduction or withholding has been made, leave the recipient with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if the recipient shall have transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the benefit, in whole or in part, of this Agreement or shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated, then the liability of the payer under this Clause 18.10.1 shall be limited to that (if any) which it would have been had no transfer or change taken place.

 

18.10.2The recipient or expected recipient of an amount paid under this Agreement shall (or shall procure that any Affiliate shall) take such measures as are reasonable to
56

claim from the appropriate Tax Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is entitled in respect of any deduction or withholding in respect of which a payment has been made or would otherwise be required to be made pursuant to Clause 18.10.1 and for such purposes shall, within any applicable time limits, submit any claims, notices, returns or applications and send a copy thereof to the payer.

 

18.10.3If the recipient of a payment made under this Agreement (or any Affiliates of such recipient) receives a credit for or refund of any Taxation payable by it or similar benefit by reason of any deduction or withholding for or on account of Taxation, then it shall reimburse to the payer such part of such additional amounts paid to it pursuant to Clause 18.10.1 as the recipient of the payment certifies to the payer will leave it (together with any Affiliate (after such reimbursement) in no better and no worse position than it would have been if the payer had not been required to make such deduction or withholding.

 

18.10.4Where any payment is made under this Agreement pursuant to an indemnity, compensation or reimbursement provision (other than pursuant to Clause 8.5.3, 8.6.3, 16.2 or 18.10.3 or paragraph 12.3 of Schedule 7) and that sum is subject to a charge to Taxation in the hands of the recipient or would be in the absence of any reliefs, then the sum payable shall be increased to such sum as will ensure that after payment of such Taxation, including any Taxation which would have been charged in the absence of any reliefs, the recipient shall be left with a sum equal to the sum that it would have received in the absence of such a charge to Taxation, provided that if the recipient shall have transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the benefit, in whole or in part, of this Agreement or shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated, then the liability of the payer under this Clause 18.10.4 shall be limited to that (if any) which it would have been had no such transfer taken place.

 

18.10.5Clause 18.10.4 shall not apply to the extent that:

 

(i)the amount of the indemnity, compensation or reimbursement payment has already been increased to take account of the Taxation that will or would be charged on receipt; or

 

(ii)the underlying amount in respect of which the indemnity, compensation or reimbursement payment is being made would itself have been subject to such Taxation.

 

18.11Indirect Transfer Tax

 

18.11.1Within 30 days of the date of execution of this Agreement, the Seller shall inform the PRC Tax Authority and the Indian Tax Authority of the execution of the Agreement and shall provide evidence reasonably satisfactory to the Purchaser that it has done so.

 

18.11.2The Seller shall deal with all matters concerning the reporting of the transactions contemplated by this Agreement to the PRC Tax Authority and the Indian Tax Authority pursuant to Clause 18.11.1 and any potential Tax liabilities arising as a
57

result of the indirect transfer of any Group Company in the PRC or India pursuant to the Pre-Closing Reorganisation or the transactions contemplated by this Agreement.

 

18.11.3The Seller shall account to the PRC Tax Authority or the Indian Tax Authority (as applicable) for any Taxation that it is determined to be properly due and payable in respect of the Pre-Closing Reorganisation or the transactions contemplated by this Agreement and shall provide evidence reasonably satisfactory to the Purchaser that it has done so.

 

18.11.4Subject to Clause 18.11.5, any payment of the Purchase Price shall be paid by the Purchaser to the Seller without any withholding or deduction for or on account Taxation imposed by the PRC or India.

 

18.11.5If the Seller and Purchaser agree, prior to Closing, that any deduction or withholding on account of Taxation imposed by the PRC or India is required by Applicable Law, the Seller shall calculate (at its absolute discretion, acting in good faith) the amount required to be withheld and notify the Purchaser of such amount (the “Withholding Amount”). The Purchaser shall withhold the amount notified by the Seller from the relevant payment of the Purchase Price. The Purchaser shall promptly account to the relevant Tax Authority for any amounts so withheld and shall provide evidence reasonably satisfactory to the Seller that it has done so.

 

18.11.6If the PRC Tax Authority or the Indian Tax Authority notifies the Purchaser or the Seller, or takes any action from which it appears, that it considers that the Withholding Amount is less than the amount required to have been withheld by the Purchaser under Applicable Law then:

 

(i)where the Purchaser is so notified (whether formally or informally) it shall immediately notify the Seller; and

 

(ii)the Seller shall have the right to conduct any discussion, correspondence or dispute regarding the matter, or make any settlement, with the PRC Tax Authority or Indian Tax Authority (as applicable) and the Buyer shall assist the Seller in all respects in its discussions with the PRC Tax Authority or Indian Tax Authority (as applicable) (including, without limitation, by assisting the Seller in the preparation of supporting documentation), and shall not settle, compromise, dispose of or make any admission in relation to the matter without the express consent of the Seller (unless required to do so by Applicable Law); and

 

(iii)if the Purchaser is required to pay any extra Tax to the PRC Tax Authority or Indian Tax Authority (as applicable) as a result of the Withholding Amount having been too low, the Seller shall indemnify the Purchaser for all losses (including additional Tax payable to the PRC Tax Authority or Indian Tax Authority (as applicable) by the Purchaser) and costs reasonably and properly incurred by the Purchaser as a result.

 

18.11.7The Purchaser shall indemnify the Seller for any loss incurred by the Seller if the Purchaser fails to pay the Withholding Amount to the relevant Tax Authority.

 

18.11.8The Purchaser shall reimburse to the Seller any refund of the Withholding Amount that the Purchaser or any member of the Purchaser’s Group may receive from the
58

PRC Tax Authority or Indian Tax Authority (as applicable) or any other relevant Governmental Entity.

 

18.11.9In any event, the Purchaser and the Seller shall cooperate to provide all supporting information and documentation required by the PRC Tax Authority or Indian Tax Authority (as applicable) in support of the calculation and payment of the Withholding Amount.

 

18.11.10The Purchaser shall procure that the Seller and its duly authorised agents are afforded such information and assistance as may reasonably be required by the Seller in connection with the discharge of its obligations under this Clause 18.11.

 

18.12VAT

 

18.12.1Where under the terms of this Agreement one party is liable to indemnify or reimburse another party in respect of any costs, charges or expenses, the payment shall include an amount equal to any VAT thereon not otherwise recoverable by the other party, subject to that party using reasonable endeavours to recover such amount of VAT as may be practicable.

 

18.12.2If any payment under this Agreement constitutes the consideration for a taxable supply for VAT purposes, then (i) the recipient shall provide to the payer a valid VAT invoice, and (ii) except where the reverse charge procedure applies, and subject to the provision of a valid VAT invoice in accordance with (i), in addition to that payment, the payer shall pay to the recipient any VAT due.

 

18.13Notices

 

18.13.1Any notice or other communication in connection with this Agreement (each, a “Notice”) shall be:

 

(i)in writing in English; and

 

(ii)delivered by hand, recorded delivery or by courier using an internationally recognised courier company.

 

18.13.2A Notice to the Seller shall be sent to such party at the following address, or such other person or address as the Seller may notify to the Purchaser from time to time:

 

Foster Wheeler LLC

 

Address: Foster Wheeler LLC, Perryville Corporate Park, 53 Frontage Road, P.O. Box 9000, Hampton, New Jersey 08827-9000

 

Attention: Timothy Langan, Assistant Secretary

 

18.13.3A Notice to the Purchaser shall be sent to such party at the following address, or such other person or address as the Purchaser may notify to the Seller from time to time:

 

Sumitomo Heavy Industries, Ltd.

 

Address: ThinkPark Tower, 1-1 Osaki 2-chome, Shinagawa-ku, Tokyo 141-6025, Japan

 

Attention: Tatsuro Ito, General Manager, Corporate Legal Department

59
18.13.4A Notice to the Guarantor shall be sent to such party at the following address, or such other person or address as the Guarantor may notify to the Purchaser from time to time:

 

Amec Foster Wheeler plc

 

Address: Booths Park, Chelford Road, Knutsford, Cheshire, WA16 8QZ

 

Attention: Alison Yapp, General Counsel

 

18.13.5Subject to Clause 18.13.6, a Notice shall be effective upon receipt and shall be deemed to have been received:

 

(i)at the time recorded by the delivery company, in the case of recorded delivery; or

 

(ii)at the time of delivery, if delivered by hand or courier.

 

18.13.6A Notice that is deemed by Clause 18.13.5 to be received after 5.00 p.m. on any day, or on a Saturday, a Sunday or a public holiday in the place of receipt, shall be deemed to be received at 9.00 a.m. on the next day that is not a Saturday, a Sunday or a public holiday in the place of receipt.

 

18.13.7For the purposes of this Clause 18.13, all references to time are to local time in the place of receipt.

 

18.14Invalidity

 

18.14.1If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the parties.

 

18.14.2To the extent it is not possible to delete or modify the provision, in whole or in part, under Clause 18.14.1, then such provision or part of it shall, to the extent that it is illegal, invalid or unenforceable, be deemed not to form part of this Agreement and the legality, validity and enforceability of the remainder of this Agreement shall, subject to any deletion or modification made under Clause 18.14.1, not be affected.

 

18.15Counterparts

 

This Agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any party may enter into this Agreement by executing any such counterpart.

 

18.16Arbitration

 

Any dispute arising out of or connected with this Agreement, including a dispute as to the validity, existence or termination of this Agreement or this Clause 18.16 or any non-contractual obligation arising out of or in connection with this Agreement, shall be resolved by arbitration in Singapore conducted in English pursuant to the Rules of Arbitration of the International Chamber of Commerce. The arbitral tribunal shall consist of three arbitrators, one selected by the claimant in the request for arbitration, the second selected by the respondent within 30 days of receipt of the request for arbitration, and the third, who shall act as presiding arbitrator, selected by the two party appointed arbitrators within 30 days of the selection of the second arbitrator. If any arbitrators are not selected within these time

60

periods, the International Court of Arbitration shall, upon the request of any party, make the selection(s).

 

18.17Governing Law and Submission to Jurisdiction

 

18.17.1This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.

 

18.17.2Each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of Singapore to support and assist the arbitration process pursuant to Clause 18.16, including, if necessary, the grant of interlocutory relief pending the outcome of that process.

 

18.18Appointment of Process Agent

 

18.18.1The Seller hereby irrevocably appoints Amec Foster Wheeler Asia Pacific Pte. Ltd. of 991E Alexandra Road #01-25 Singapore 119973 as its agent to accept service of process in Singapore in any legal action or proceedings arising out of or in connection with this Agreement, service upon whom shall be deemed completed whether or not forwarded to or received by the Seller.

 

18.18.2The Guarantor hereby irrevocably appoints Amec Foster Wheeler Asia Pacific Pte. Ltd. of 991E Alexandra Road #01-25 Singapore 119973 as its agent to accept service of process in Singapore in any legal action or proceedings arising out of or in connection with this Agreement, service upon whom shall be deemed completed whether or not forwarded to or received by the Guarantor.

 

18.18.3The Seller and the Guarantor shall, as applicable, inform the Purchaser in writing of any change of address of such process agent within 14 days of such change.

 

18.18.4If such process agent ceases to be able to act as such or to have an address in Singapore, the Seller and the Guarantor (as the case may be) irrevocably agree to appoint a new process agent in Singapore acceptable to the Purchaser and to deliver to the Purchaser within 30 days a copy of a written acceptance of appointment by the process agent.

 

18.18.5The Purchaser hereby irrevocably appoints BluTrust Corporate Services Pte Ltd of 6 Raffles Quay #14-06 Singapore 048580 as its agent to accept service of process in Singapore in any legal action or proceedings arising out of this Agreement, service upon whom shall be deemed completed whether or not forwarded to or received by the Purchaser.

 

18.18.6The Purchaser shall inform the Seller in writing of any change of address of such process agent within 14 days of such change.

 

18.18.7If such process agent ceases to be able to act as such or to have an address in Singapore, the Purchaser irrevocably agrees to appoint a new process agent in Singapore acceptable to the Seller and to deliver to the Seller within 30 days a copy of a written acceptance of appointment by the process agent.

 

18.18.8Nothing in this Agreement shall affect the right to serve process in any other manner permitted by law.

 

This Agreement has been entered into on the date stated at the beginning.

61
SIGNED by Tarun Bafna
on behalf of AMEC FOSTER
WHEELER PLC
:
  /s/ TARUN BAFNA
     
     
SIGNED by Gary T.
Nedelka
on behalf of FOSTER WHEELER LLC:
  /s/ GARY NEDELKA
     
SIGNED by Shinji
Nishimura
on behalf of SUMITOMO HEAVY
INDUSTRIES, LTD.
:
  /s/ SHINJI NISHIMURA
62

Schedule 1
Companies and Subsidiaries

 

1Particulars of the Company

 

FW Energie B.V.

 

Name of Company: FW Energie B.V.
   
Registered Number: 33297184
   
Fiscal Number: 56.17.662
   
Registered Office: Naritaweg 165, Telestone 8, 1043 BW Amsterdam, the Netherlands
   
Date of incorporation: 4 December 1973
   
Issued share capital: 211 shares with a nominal value of EUR 90.75 each
   
Shareholders and shares held: FW Investments Holdings S.a.r.l holding 211 shares
   
Directors:

Trust International Management (T.I.M.) B.V.

 

Anthony Scerbo

 

Hans-Peter Visser

 

Secretary: N/A
   
Managing Director/Chief Executive Officer: N/A
   
2Particulars of the Subsidiaries

 

2.1Amec Foster Wheeler Power Group Asia Limited

 

Name of Company: Amec Foster Wheeler Power Group Asia Limited
   
Registered Number: 1175713
   
Registered Office: Level 2, Neich Tower, 128 Gloucester Road, Wan Chai, Hong Kong, China
   
Date and place of incorporation: 15 October 2007, Hong Kong, China
   
Issued share capital: 10,000,000 shares of HK$1each
   
Shareholders and shares held: Foster Wheeler LLC holding 10,000,000 ordinary shares
   
Directors:

Antony Scerbo

 

David J. Parham

 

Gary T. Nedelka

 

Ka Mee Natalia Seng Sze

63
Name of Company: Amec Foster Wheeler Power Group Asia Limited
   
Secretary: N/A
   

Chief Executive Officer:

 

VP Finance:

Tomas Harju-Jeanty

 

Ellen Zhang

   
2.2Amec Foster Wheeler Energia Polska Sp. z.o.o. (Poland-Warsaw)

 

Name of Subsidiary: Foster Wheeler Energia Polska Sp. z.o.o. (Poland-Warsaw)
   
Registered Number: N/A
   
Company Number: KRS 65443
   
Employer Tax ID Number: 527-00-50-536
   
Registered Office: Ul.Chmielna 85/87, Warsaw, 00-805, Poland
   
Registration date and place: 17 December 1992, Poland
   
Issued share capital: 27,640 ordinary shares of 600.00 Polish Zloty each
   
Shareholders and shares held:

FW Europe B.V. holding 27,637.00 ordinary shares/99.99%

 

Amec Foster Wheeler Energia Oy holding 3.00 ordinary shares/0.01%

   
Directors:

Anthony Scerbo, Member of the Management Board

 

Bartosz Dudek, Member of the Management Board

 

David J. Parham, Member of the Management Board

 

Gary T. Nedelka, Member of the Management Board

 

Grzegorz Szastok, Member of the Management Board

 

Slawomir Gorecki, Member of the Management Board

 

Tomas William Harju-Jeanty, Member of the Management Board

 

Jaroslaw Mlonka, President of the Management Board

   
Secretary: N/A
   
Managing Director/Chief Executive Officer: N/A
64
2.3Amec Foster Wheeler Energy FAKOP Sp. z.o.o. (Poland-Katowice)

 

Name of Subsidiary: Amec Foster Wheeler Energy FAKOP Sp. z.o.o. (Poland-Katowice)
   
Registered Number: N/A
   
Company Number: KRS71681
   
Employer Tax Number: 6440514640
   
Registered Office and Primary Address: ul. Staszica 31, Sosnowiec, 41-200, Poland
   
Registration date and place: 22 November 1991, Poland
   
Issued share capital:

Group 1 issued shares = 30,234.00 at 250.00 Polish Zloty each

 

Group 2 issued shares = 7,040.00 at 250.00 Polish Zloty each

 

Group 3 issued shares = 27,776.00 at 250.00 Polish Zloty each

65
Name of Subsidiary: Amec Foster Wheeler Energy FAKOP Sp. z.o.o. (Poland-Katowice)
   
Shareholders and shares held:

Amec Foster Wheeler Energia Polska, Sp. z.o.o holding 19,218.00/63.56% of group 1 shares, 1,598.00/22.70% of group 2 shares, 13,888.00/50% of group 3 shares; overall holding of 53.35%

 

CNIM holding 3,628.00/12% of group 1 shares, 1,843.00/26.18% of group 2 shares

 

Marubeni Europower Development holding 3,628.00/12% of group 1 shares and 1,843.00/26.18% of group 2 shares

 

Egmont Consulting Sp. z.o.o holding 3,760.00/12.44% of group 1 shares.

 

Warsaw Equity Management S.A. holding 1,711.00/24.30% of group 2 shares

 

Workers holding 45.00/0.64% of group 2 shares

 

NEFCO holding 13,888.00/50% of group 3 shares

66
Name of Subsidiary: Amec Foster Wheeler Energy FAKOP Sp. z.o.o. (Poland-Katowice)
   
Directors:

Arkadiusz Osuch, Member of the Management Board

 

Daniel Rossi, Member (CNIM)

 

Jaakko Jantti, Member (Foster Wheeler Energia Oy)

 

Bartosz Dudek, Member (Foster Wheeler Energia Polska)

 

Grzegorz Szastok, Member (Foster Wheeler Energia Polska)

 

Jaroslaw Mlonka, Member (Foster Wheeler Energia Polska)

 

Slawomir Gorecki, Member (Foster Wheeler Energia Polska)

 

Maciej Rózycki, Member (Warsaw Equity Management S.A./Egmont Consulting Sp. z o.o.)

 

Mariusz Karcz, Member of the Board Zbigniew Gluchowski, Member of the Supervisory Board (NEFCO)

 

Secretary: N/A
   
Managing Director/Chief Executive Officer: N/A
   
2.4Amec Foster Wheeler Energia Oy

 

Name of Subsidiary: Amec Foster Wheeler Energia Oy
   
Registered Number: N/A
   
State File Number: 1018123-9
   
Federal ID Number: 1018123-9
   
Reference ID Number: 636.575
   

Primary Office:

Metsänneidonkuja 8, P.O. Box 7, Espoo, 02130, Finland 02130
   
Formation date and place: 13 September 1995, Finland
   
Issued share capital: 85,765.00 common shares of EUR€174.90 each
   
Shareholders and shares held: FW Energie B.V. holding 85,765.00 common shares
67
Name of Subsidiary: Amec Foster Wheeler Energia Oy
   
Directors:

Anthony Scerbo, Chairman of the Board

 

Gary T. Nedelka, Member of the Board

 

Tomas William Harju-Jeanty, Member of the Board

 

Secretary: N/A
   

President/Chief Executive Officer:

Tomas William Harju-Jeanty
   
2.5Amec Foster Wheeler Energi Aktiebolag

 

Name of Subsidiary: Amec Foster Wheeler Energi Aktiebolag
   
Registered Number: N/A
   
Company Number: 556518-8769
   
Employer Tax ID Number: 556518-8769
   
Primary Address: Box 6071 (Lindövägen 75), Norrkoping, 600 06, Sweden
   
Registration date and place: 12 July 1995, Sweden
   
Issued share capital: 50,000 ordinary shares of 100.00 Swedish Krona each
   
Shareholders and shares held: Amec Foster Wheeler Energia Oy holding 50,000 ordinary shares
   
Directors:

Bartosz Dudek

 

Kari Matti Antero Kohvakka

 

Secretary: N/A
   

Managing Director:

 

Chairman of the Board:

Claes Moqvist

 

Tomas William Harju-Jeanty

   
2.6OOO Foster Wheeler Energia (Russia)

 

Name of Subsidiary: OOO Foster Wheeler Energia (Russia)
   
Registered Number: N/A
   
Company Number: 1097746390675
   
Employer Tax Number: OGRN 1097746390675
68
Name of Subsidiary: OOO Foster Wheeler Energia (Russia)
   
Registered Office: c/o ZAO Konsu M, Sadovnicheskaya naberezhnaya, 79, Moscow, 115035, Russian Federation
   
Registration date and place: 9 July 2009, Russia
   
Issued share capital: 1.00 ordinary share of 10,000.00 Russian Rubles
   
Shareholders and shares held: Amec Foster Wheeler Energia Oy holding 1.00 ordinary share
   
Directors: Lillia Sergeevna Belobrova, General Director
   
Secretary: N/A
   
General Director:

Lillia Sergeevna Belobrova

 

2.7Amec Foster Wheeler Energie GmbH (Germany)

 

Name of Subsidiary: Amec Foster Wheeler Energie GmbH (Germany)
   
Registered Number: N/A
   
Company Number: HRB13371
   
Employer Tax Number: 117/5811/1336
   
Primary Address: Peterstrasse 120, Krefeld, 47798, Germany
   
Registration date and place: 14 November 1996, Germany
   
Issued share capital: 1.00 common share of EUR€25,564.59
   
Shareholders and shares held: Amec Foster Wheeler Energia Oy holding 1.00 common share
   
Directors:

Jaakko Rialli, Managing Director

 

Tomas William Harju-Jeanty, Chairman

 

Bartosz Dudek, Member of the Board

 

Kari Matti Antero Kohvakka, Member of the Board

 

Secretary: N/A
   

Managing Director:

 

Chairman:

Jaakko Riiali

 

Tomas William Harju-Jeanty

69
2.8Graf-Wulff US Corp.

 

Name of Subsidiary: Graf-Wulff US Corp.
   
Registered Number: N/A
   
Charter Number: 4394277
   
Employer Tax Number: 75-3248028
   
Primary Address: Perryville Corporate Park, 53 Frontage Road, P.O. Box 9000, Hampton, NJ, 08827-9000, United States
   
Formation date and place: 23 July 2007, Delaware
   
Issued share capital: 100.000 common shares of US$0.01 each
   
Shareholders and shares held: Amec Foster Wheeler Energie GmbH holding 100.00 common shares
   
Directors:

Anthony Scerbo

 

Gary T. Nedelka

 

Secretary: John A. Doyle, Jr.
   
President/Chief Executive Officer: Byron Roth
   
2.9CLIC Innovation Oy (Finland)

 

Name of Subsidiary: CLIC Innovation Oy (Finland)
   
Registered Number: N/A
   
Company Number: 2689612-4
   
Registered Office: N/A
   
Registration date and place: 1 September 2015, Finland
   
Issued share capital: 4,642 ordinary shares
   
Shareholders and shares held: Amec Foster Wheeler Energia Oy holding 100 ordinary shares/2.15% and 46 other shareholders holding varying proportions
   
Directors: Tommy Jacobson, Managing Director
   
Secretary: N/A
   
Managing Director/Chief Executive Officer: Ilari Kallio (Wartsila Finland Oy)
70
2.10ISGEC Foster Wheeler Boilers Private Limited

 

Name of Subsidiary: ISGEC Foster Wheeler Boilers Private Limited
   
Registered Number: U74900HR2015PTC054608
   
Registered Office: Radaur Road, Yamunanagar 135001, Haryana, India
   
Date and place of incorporation: 17 February 2015, India
   
Issued share capital: 2,000,000 equity shares of 10 Rupees each
   
Shareholders and shares held:

Amec Foster Wheeler North America Corp. holding 980,000 equity shares /49% ownership

 

Isgec Heavy Engineering Limited holding 1,020,000 equity shares/51% ownership

 

Directors:

David J. Parham

 

Tomas Harju-Jeanty

 

Aditya Puri (Isgec)

 

Krishnamurthy Viswanathan (Isgec)

 

Suman Kumar Jain (Isgec)

 

Secretary: S. K. Khorana (Isgec)
   
Chairman: Aditya Puri
   
2.11Amec Foster Wheeler Service (Thailand) Limited

 

Name of Subsidiary: Amec Foster Wheeler Service (Thailand) Limited
   
Registered Number: 0215543000268
   
Registered Office: 20th Floor Bhiraj Tower at EmQuartier, 689 Sukhumvit Road, North Klongton, Wattana, Bangkok 10110, Thailand
   
Date and place of incorporation: 22 February 2000, Thailand
   
Issued share capital: 20,000 ordinary shares at 100 Thai Baht each
   
Shareholders and shares held:

Amec Foster Wheeler Power Group Asia Limited holding 19,998 ordinary shares

 

Amec Foster Wheeler North America Corp. holding 1 ordinary share

 

FW Europe B.V. holding 1 ordinary share

71
Name of Subsidiary: Amec Foster Wheeler Service (Thailand) Limited
   
Directors:

Anthony Scerbo

 

Gary T. Nedelka

 

Tomas Harju-Jeanty

 

Kari Matti Antero Kohvakka

 

Secretary: N/A
   
General Manager: Kari Matti Antero Kohvakka
   
2.12Amec Foster Wheeler International Trading (Shanghai) Company Limited

 

Name of Subsidiary: Amec Foster Wheeler International Trading (Shanghai) Company Limited
   
Unified Social Credit Code: 913101157030985346
   
Registered Office: 323 Room, Sanlian Tower, 8 Jinhua Road, Shanghai Pilot Free Trade Zone, PR China
   
Date and place of incorporation: 8 March 2001, China
   
Issued share capital:

Membership interest based on capital contribution

 

Registered capital of US$200,000

 

Shareholders and shares held: Amec Foster Wheeler Power Group Asia Limited holding 100% membership interest
   
Directors:

Anthony Scerbo

 

Gary T. Nedelka

 

David J. Parham

 

Secretary: N/A
   
General Manager: Gary T. Nedelka
   
2.13Amec Foster Wheeler Energy Management (Shanghai) Company Limited

 

Name of Subsidiary: Amec Foster Wheeler Energy Management (Shanghai) Company Limited
   
Unified Social Credit Code:

91310000607428767J

 

Registered Office: 8th Floor, UC Tower, 500 Fu Shan Road, Shanghai Pilot Free Trade Zone, PR China
   
Date and place of incorporation: 9 April 2001, China
72
Name of Subsidiary: Amec Foster Wheeler Energy Management (Shanghai) Company Limited
   
Issued share capital:

Membership interest based on capital contribution

 

Registered capital of US$2,000,000

   
Shareholders and shares held: Amec Foster Wheeler Power Group Asia Limited holding 100% membership interest
   
Directors:

Anthony Scerbo

 

Gary T. Nedelka

 

David J. Parham

 

Secretary: N/A
   
Chairman/General Manager: Gary T. Nedelka
   
2.14Amec Foster Wheeler Power Vietnam Limited Liability Company

 

Name of Subsidiary: Amec Foster Wheeler Power Vietnam Limited Liability Company
   
Registered Number: 0105397352
   
Registered Office: Suite 706-708, Central Building, 31 Hai Ba Trung, Trang Tien Ward, Hoan Kiem District, Hanoi, Vietnam
   
Date and place of incorporation: 27 June 2011, Vietnam
   
Issued share capital: Contributed capital from sole member of 4,875,000,000 Vietnam Dong
   
Shareholders and shares held: Amec Foster Wheeler Power Group Asia Limited holding 100% contributed capital
   
Directors:

Steve Di Lauri

 

Nguyen Duc Hung

 

Secretary: N/A
   
General Director: Nguyen Duc Hung, General Director
   
2.15Foster Wheeler Europe B.V.

 

Name of Subsidiary: FW Europe B.V.
   
Registered Number: 33242592
   
Registered Office: Naritaweg 165, Telestone 8, 1043 BW, Amsterdam, the Netherlands
73
Name of Subsidiary: FW Europe B.V.
   
Date and place of incorporation: 27 November 1991
   
Issued share capital: 1,500 shares with a nominal value of EUR 45 each
   
Shareholders and shares held: FW Energie B.V. holding 1,500 shares
   
Directors:

Anthony Scerbo

 

Gerrit Jan Stam

 

Hans-Peter Visser

74

Schedule 2
Closing Obligations

 

1General Obligations

 

1.1The Seller’s Obligations

 

On Closing, the Seller shall deliver or make available to the Purchaser the following:

 

1.1.1evidence of the due fulfilment of the Pre-Closing Reorganisation Condition;

 

1.1.2the Tax Indemnity duly executed by the Seller;

 

1.1.3the Transitional Services Agreement duly executed by the Company and Amec Foster Wheeler E&C Services Inc.;

 

1.1.4the Transitional Trade Mark Licence duly executed by the Seller;

 

1.1.5evidence that Amec Foster Wheeler PLC, the Seller, the Guarantor and, as applicable, the Company are authorised to execute this Agreement, the Tax Indemnity, the Transitional Services Agreement and the Transitional Trade Mark Licence (including, where relevant, any notarial deeds referred to in this Schedule 2); and

 

1.1.6the shareholders’ register of the Company.

 

1.2The Purchaser’s Obligations

 

On Closing, the Purchaser shall deliver or make available to the Seller the following:

 

1.2.1evidence of the due fulfilment of the Antitrust Conditions;

 

1.2.2the Tax Indemnity duly executed by the Purchaser;

 

1.2.3the Transitional Services Agreement duly executed by the Purchaser;

 

1.2.4the Transitional Trade Mark Licence duly executed by the Purchaser;

 

1.2.5evidence that the Purchaser is authorised to execute this Agreement, the Tax Indemnity, the Transitional Services Agreement and the Transitional Trade Mark Licence (including, where relevant, any notarial deeds referred to in this Schedule 2).

 

2Transfer of the Shares

 

2.1General Transfer Obligations

 

On Closing, after confirmation by the Seller to the parties of receipt of the amount due, the Seller shall transfer the Shares to the Purchaser, the Purchaser shall accept the transfer, and the Seller shall procure that the Company acknowledges such transfer, the foregoing to be effected by execution by the Seller, the Purchaser and the Company, before a Dutch civil law notary (the “Notary”) of a notarial deed of transfer of shares in the Agreed Terms (the “Transfer Deed”).

 

The parties do not intend this Agreement to transfer title to any of the Shares. Title to any of the Shares shall be transferred by the Transfer Deed.

75

To the extent that the provisions of the Transfer Deed are inconsistent with or (except to the extent they implement a transfer in accordance with this Agreement) additional to the provisions of this Agreement, the provisions of this Agreement shall prevail.

 

2.2Updating shareholders’ register

 

After Closing, the Purchaser shall procure that the Notary updates the shareholders’ register of the Company and the information of the Company at the Dutch Trade Register of the Chamber of Commerce in respect of the resigned and newly appointed directors, share ownership and name change of the Company.

 

3Further Obligations in Addition to Transfer

 

3.1General Obligations

 

The Seller shall deliver or make available to the Purchaser the following:

 

3.1.1the written resignations in the Agreed Terms (and legalised by a notary where required) of each of those individuals to be specified by the Purchaser after the date of this Agreement (and, in any event, within five Business Days prior to Closing), to take effect on Closing;

 

3.1.2evidence as to the acceptance by the general meeting of the Company of the resignation(s) referred to in paragraph 3.1.1 above and of the appointment of such person(s) as the Purchaser may nominate as managing director(s) and of the amendment of the articles of association of the Company, all to take effect on Closing; and

 

3.1.3in each case where the said information is not in the possession of the relevant Group Company, the corporate books and records, duly written and up-to-date, including the shareholders’ register and share certificates in respect of the Subsidiaries, and all other books and records, all to the extent required to be kept by each Group Company under the law of its jurisdiction of incorporation.
76

Schedule 3

 

Part 1
Final Closing Statement
(Clause 9)

 

1Accounting Policies

 

1.1The Final Closing Statement shall be drawn up in accordance with:

 

1.1.1the accounting principles, policies, procedures, practices, methods, definitions and estimation techniques, as set out in paragraphs 1.2 to 1.19 below;

 

1.1.2to the extent not inconsistent with paragraph 1.1.1 above, the accounting principles, policies, procedures, practices, methods, definitions and estimation techniques (each including with regard to the exercise of management judgment) adopted in the Reference Balance Sheet, applied on a consistent basis;

 

1.1.3to the extent not inconsistent with paragraphs 1.1.1 and 1.1.2 above, IFRS as at the Accounts Date.

 

1.2The Final Closing Statement shall be drawn up as at close of business in the relevant locations on the Closing Date (the “Effective Time”). No account shall be taken of events taking place after the Effective Time, and regard shall only be had to the information available to the parties to this Agreement up to the date that the Draft Closing Statement is delivered by the Purchaser to the Seller, such as invoices, disbursements, receipts and correspondence.

 

1.3The Final Closing Statement shall be expressed in US Dollars. Amounts in other currencies shall be translated into US Dollars in accordance with Clause 1.11.

 

1.4The Final Closing Statement shall be drawn up in accordance with this Schedule 3 and in the form set out in Part 2 of this Schedule 3.

 

1.5The Final Closing Statement shall include only the assets and liabilities that are accounted for within the line items set forth on the Reference Balance Sheet. No other categories of assets or liabilities will be included in the Final Closing Statement.

 

1.6The Final Closing Statement shall be prepared on the basis that the Group is a going concern and shall exclude the effect of change of control or ownership of the Group and will not take into account the effects of any post-Closing reorganisations or the post-Closing intentions or obligations of the Purchaser.

 

1.7For the purposes of the Final Closing Statement, the Effective Time shall be treated as the end of a financial and tax accounting period.

 

1.8The provisions of this Schedule 3 shall be interpreted so as to avoid double counting (whether positive or negative) of any item to be included in the Final Closing Statement.

 

1.9No minimum materiality limits shall be applied in the preparation and review of the Final Closing Statement.

 

1.10Items shall be classified consistently in the Final Closing Statement as in the Reference Balance Sheet (i.e. items included as “Cash” in the Reference Balance Sheet shall be included as “Cash” in the Final Closing Statement, items included as “Indebtedness” in the
77

Reference Balance Sheet shall be included as “Indebtedness” in the Final Closing Statement, items included as “Working Capital” in the Reference Balance Sheet shall be included as “Working Capital” in the Final Closing Statement. For the avoidance of doubt, no amounts in relation to those line items included as “Excluded” in the Reference Balance Sheet shall be included in “Cash”, “Indebtedness” or “Working Capital” in the Final Closing Statement.

 

1.11Indebtedness in the Final Closing Statement shall include all interest accrued thereon prior to but unpaid at the Effective Time and any prepayment premiums or penalties payable in order to retire or extinguish such amounts at their redemption value but shall exclude any unamortised debt issuance costs.

 

1.12Subject to any specific policies in this paragraph 1, where an accrual or provision was recognised in the Reference Balance Sheet in relation to any matter or series of related matters, no increase in accrual or provision shall be made in the Final Closing Statement unless and to the extent that since the preparation of the Reference Balance Sheet (and prior to the delivery of the Draft Closing Statement pursuant to paragraph 1.2 above) new facts or circumstances have arisen which, in accordance with paragraph 1.1.2 above, justify such increase.

 

1.13No new type of provision or reserve shall be included in the Final Closing Statement that was not included in the Reference Balance Sheet unless and to the extent that since the preparation of the Reference Balance Sheet (and prior to the delivery of the Draft Closing Statement pursuant to paragraph 1.2 above) new facts or circumstances have arisen which, in accordance with paragraph 1.1.2 above, justify such increase.

 

1.14Contracts in Process assets in the Final Closing Statement shall only be adjusted if and to the extent that since the preparation of the Reference Balance Sheet (and prior to the delivery of the Draft Closing Statement pursuant to paragraph 1.2 above) new facts or circumstances have arisen which, in accordance with paragraph 1.1.2 above, justify such adjustment. The Purchaser shall ensure that management judgment estimates in respect of Contracts in Process assets in the Reference Balance Sheet are not adjusted in the Final Closing Statement in the absence of such new facts or circumstances.

 

1.15The Final Closing Statement shall be prepared so as to include no provision with respect to any matter which is the subject of an indemnity in favour of the Purchaser or any member of the Group under the terms of this Agreement.

 

1.16A liability will be included in the Final Closing Statement for any Seller's transaction costs (including transaction bonuses) to the extent unpaid at the Effective Time and payable by the Group after the Effective Time.

 

1.17No liability shall be included in the Final Closing Statement in respect of the Romania VAT legal case (as detailed in folder 3.1.8.2 of the Data Room).

 

1.18Environmental provisions (Account 4819 PPA – Environmental) shall be included as a liability of US$3,699,852. No other environmental provisions shall be included in the Final Closing Statement.

 

1.19Assets and liabilities in respect of pensions and other post-retirement benefits (Accounts 4831 Pension Benefits and 4741 Postr-Liab-FAS 106) shall be as set out in the Reference Balance Sheet.
78
2Preparation

 

2.1No later than 45 days following Closing, the Purchaser shall deliver to the Seller the Draft Closing Statement.

 

2.2Each of the Seller and the Purchaser shall co-operate with the other with regard to the preparation, review, agreement or determination of the Draft Closing Statement and shall, subject to reasonable notice, make available during normal office hours to the other party and its representatives and accountants all books and records, together with the services of any employees of the Group, as the other party may reasonably require.

 

2.3If the Seller does not within 45 days of presentation to it of the Draft Closing Statement give notice to the Purchaser that it disagrees with the Draft Closing Statement or any item thereof, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s opinion, should be made to the Draft Closing Statement (the “Seller’s Disagreement Notice”), the Draft Closing Statement shall be final and binding on the parties for all purposes. If the Seller gives a Seller’s Disagreement Notice within such 30 days, the Purchaser and the Seller shall attempt in good faith to reach agreement in respect of the Draft Closing Statement and, if they are unable to do so within 21 days of such notification, the Purchaser or the Seller may by notice to the other require that the Draft Closing Statement be referred to the Reporting Accountants.

 

2.4The Reporting Accountants shall be engaged jointly by the Purchaser and the Seller on the terms set out in this paragraph 2 and otherwise on such terms as shall be agreed; provided that neither the Purchaser nor the Seller shall unreasonably (having regard, inter alia, to the provisions of this paragraph 2) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 15 days of their identity having been determined (or such longer period as the Purchaser and the Seller may agree) then, unless the Purchaser or the Seller is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement. For the avoidance of doubt, any work undertaken by the Reporting Accountants in relation to the unaudited Draft Closing Statement prepared by the Purchaser shall be undertaken in accordance with paragraph 2.5 below and shall not be conducted to audit standard.

 

2.5Except to the extent that the Purchaser and the Seller agree otherwise, the Reporting Accountants shall determine their own procedure but:

 

2.5.1apart from procedural matters and as otherwise set out in this Agreement shall determine only:

 

(i)whether any of the arguments for an alteration to the Draft Closing Statement put forward in the Seller’s Disagreement Notice is correct in whole or in part; and

 

(ii)if so, what alterations should be made to the Draft Closing Statement in order to correct the relevant inaccuracy in it;

 

2.5.2shall apply the accounting principles, policies, procedures, practices and estimation techniques set out in paragraph 1 above;
79
2.5.3shall make their determination pursuant to paragraph 2.5.1 above as soon as is reasonably practicable and in any event, within 20 days; and

 

2.5.4the procedure of the Reporting Accountants shall:

 

(i)give the Purchaser and the Seller a reasonable opportunity to make written representations to them;

 

(ii)require that the Seller and the Purchaser supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants; and

 

(iii)permit the Seller and the Purchaser to be present while oral submissions are being made by the other party,

 

for the avoidance of doubt, the Reporting Accountants shall not be entitled to determine the scope of their own jurisdiction.

 

2.6The determination of the Reporting Accountants pursuant to paragraph 2.5.1 above:

 

2.6.1shall be made available to the Purchaser and the Seller in writing; and

 

2.6.2unless otherwise agreed by the Purchaser and the Seller shall include reasons for each relevant determination.

 

2.7The Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Purchaser save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction). In particular, their determination shall be deemed to be incorporated into the Draft Closing Statement.

 

2.8The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct at the time they make any determination under paragraph 2.5.1(i) above or, failing such direction, equally between the Purchaser and the Seller.

 

2.9The Seller and Purchaser shall co-operate with the Reporting Accountants and comply with their reasonable requests made in connection with the carrying out of their duties under this Agreement. In particular the Purchaser shall keep up-to-date and, subject to reasonable notice, make available to the Seller’s representatives, the Seller’s accountants and the Reporting Accountants all books and records relating to the Group and access to all relevant systems relating to the Group (as the case may be) during normal office hours as the Reporting Accountants may reasonably request during the period from the appointment of the Reporting Accountants down to the making of the relevant determination.

 

2.10Nothing in this Schedule shall entitle a party or the Reporting Accountants access to any information or document which is protected by legal professional or litigation privilege, provided that neither the Seller nor the Purchaser shall be entitled to refuse to supply such part or parts of documents as contain only the facts on which the relevant claim or argument is based.

 

2.11The Seller and the Purchaser and the Reporting Accountants shall, and shall procure that its accountants and other advisers shall, keep all information and documents provided to them pursuant to this Schedule confidential and shall not use the same for any purpose, except for disclosure or use in connection with the preparation of the Draft Closing
80

Statement, the proceedings of the Reporting Accountants or another matter arising out of this Agreement.

 

3Cash, Indebtedness and Working Capital

 

The following items shall comprise the Final Closing Statement, all as set out in more detail in Part 2 of Schedule 3.

 

3.1Working Capital Items

 

3.1.1Accounts Receivable-Trade (net of account receivables reserves and uncollectible/doubtful receivables);

 

3.1.2Inventories;

 

3.1.3Contracts in Process;

 

3.1.4Accounts Payable;

 

3.1.5Accrued Expenses;

 

3.1.6Estimated Cost to Complete Long-Term Contracts;

 

3.1.7Accounts Receivable – Other;

 

3.1.8Prepaid Expenses; and

 

3.1.9Intercompany accounts receivable and payables.

 

3.2Cash

 

3.2.1Cash and cash equivalents (exclusive of restricted cash);

 

3.2.2Prepaid & Refundable income taxes;

 

3.2.350% of Other Assets; and

 

3.2.4100% of Deferred Tax Assets.

 

3.3Indebtedness

 

3.3.1Loans (including overdrafts) and payables due to financial institutions and out-scope companies;

 

3.3.2Capital leases;

 

3.3.3Income tax payables;

 

3.3.4Accrued interests;

 

3.3.5Environmental LT liabilities (provisions);

 

3.3.650% of claim reserves for the Samcheok, Cebu and Alto projects, being:

 

(i)in respect of the Samcheok project, line items 201 and 301 from the section entitled “Execution Risks” and line item 11 from the section entitled “PPA reservation – Delay Risks” of document 3.2.9.47.1.2 in the Data Room;

 

(ii)in respect of the Cebu project, line item 13.1.8 from the section entitled “Execution Risks” of document 3.2.9.47.1.4 in the Data Room;
81
(iii)in respect of the Alto project, line items 2, 4 and 5 from the section entitled “Execution Risks” and item 1 from the section entitled “Warranty Risks” of document 3.2.9.47.1.3 in the Data Room; and

 

(iv)in respect of all three projects, the currency figures included in the columns entitled “Current Cost Report” of document 3.2.9.47.1.1 in the Data Room,

 

as such line items may be updated in the Final Closing Statement;

 

3.3.7Unpaid transaction costs (including transaction related bonuses and advisory costs);

 

3.3.8Capex payable;

 

3.3.9Pension obligation & other post-retirement benefits;

 

3.3.1050% of Dilapidation Provision;

 

3.3.11Restructuring Reserve.

 

3.3.12Unpaid liability in respect of non-CFB Business.

 

3.3.13Retirement/severance accrual.

 

3.3.14Financial Instruments – Derivatives.

 

3.4Avoidance of double recovery

 

If Indebtedness items on the same subject matter/project have already been taken into account, indemnification/recovery amount in case of warranty breaches will be reduced by the same amount in order to avoid double recovery.

82

EXECUTION VERSION

 

Schedule 3

 

Part 2
Form of Final Closing Statement
(Clause 9)

 

Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
2110   CO-Land   -   -   -   X   X
2120   CO-Land/Yard Improvements   -   -   -   X   X
2130   CO-Building & Improvements   -   -   -   X   X
2140   CO-Machinery and Equipment   -   -   -   X   X
2141   CO-Computers   -   -   -   X   X
2142   CO-Plant Equipment   -   -   -   X   X
2143   CO-Construction Equipment   -   -   -   X   X
2144   CO-Other M & E   -   -   -   X   X
2150   CO-Furniture & Fixtures   -   -   -   X   X
2160   CO-Vehicles   -   -   -   X   X
2170   CO-Laboratory Equipment   -   -   -   X   X
2180   CO-Leasehold Improvements   -   -   -   X   X
2198   CO-Appr. (Self Construct)   -   -   -   X   X
2199   CO-Capital Lease   -   -   -   X   X
2299   CO-LBE-Reclass   -   -   -   X   X
    PPA ADJUST   -   -   -   X   X
83
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
2100   Land, Buildings and Equipment   -   -   -   X   X
2210   AD-Land (No Depreciation)   -   -   -   X   X
2220   AD-Land/Yard Improvements   -   -   -   X   X
2230   AD-Building & Improvements   -   -   -   X   X
2240   AD-Machinery and Equipment   -   -   -   X   X
2241   AD-Computers   -   -   -   X   X
2242   AD-Plant Equipment   -   -   -   X   X
2243   AD-Construction Equipment   -   -   -   X   X
2244   AD-Other M & E   -   -   -   X   X
2250   AD-Furniture & Fixtures   -   -   -   X   X
2260   AD-Vehicles   -   -   -   X   X
2270   AD-Laboratory Equipment   -   -   -   X   X
2280   AD-Leasehold Improvements   -   -   -   X   X
2199   AD-Capital Lease   -   -   -   X   X
2299   AD-LBE Reclass   -   -   -   X   X
    PPA ADJUST   -   -   -   X   X
2200   Accumulated Depreciation   -   -   -   X   X
    Land, Buildings and Equipment, Net   -   -   -   X   X
2611   CIE-Goodwill -Gross   -   -   -   X   X
2619   CIE-Amort.   -Goodwill   -   -   -   X   X
84
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
    Goodwill   -   -   -   X   X
2511   INA-Invest-Subsidiaries   -   -   -   X   X
2531   INA-Invest-Other   -   -   -   X   X
2533   INA-Gli-A/R-Equity Companies   -   -   -   X   X
    Investments and Advances   -   -   -   X   X
2621   CIE-Trademark-Gross   -   -   -   X   X
2629   CIE-Amort.   -Trademark   -   -   -   X   X
2631   CIE-Patents  -Gross   -   -   -   X   X
2639   CIE-Amort. - Patents      -   -   -   X   X
2666   CIE-Other - Intangibles      -   -   -   X   X
2600   Intangible Assets, Net   -   -   -   X   X
2311   NAR-Notes Rec-Long Term   -   -   -   X   X
2314   Lease Rec-Finance Loan (PPA adj)   -   -   -   X   X
2321   NAR-Long Term IRC   -   -   -   X   X
2399   NAR-Reclass   -   -   -   X   X
    Notes, Lease & Accounts Receivable Long-Term   -   -   -   X   X
2710   Other Assets   -   X   -   -   X
1311   ART-Contracts   X   -   -   -   X
1321   ART-Retention   X   -   -   -   X
85
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
1331   ART-Allo. Bad Debt   X   -   -   -   X
1351   ART-Plants   X   -   -   -   X
1361   ART-Unbilled Receivable   X   -   -   -   X
1399   ART-Reclass   X   -   -   -   X
    Accounts Receivable - Trade   X   -   -   -   X
1411   ARO-Interco Receivable   X   -   -   -   X
1610   CIP-Job Cost-Labor   X   -   -   -   X
1620   CIP-Job Cost-Material,Sub Cont   X   -   -   -   X
1630   CIP-Job Cost-Repro,Computer   X   -   -   -   X
1640   CIP-Job Cost-Misc Charges   X   -   -   -   X
1671   CIP-Other-Intercompany   X   -   -   -   X
1672   CIP-Other-Mat In Transit   X   -   -   -   X
1673   CIP-Other-Sundry   X   -   -   -   X
1681   CIP-Inventory-Profit Recog   X   -   -   -   X
1698/1699   CIP-Contract Revenue   X   -   -   -   X
    Contracts In Progress   X   -   -   -   X
1710   INV-Consigned Stock   X   -   -   -   X
1711   INV-Arcy Mfg. Co.   X   -   -   -   X
1712   INV-Mcgregor Texas   X   -   -   -   X
1721   INV-Finished Goods   X    -   -   -    X
86
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
1723   INV-Raw Materials   X   -   -   -   X
1724/1725   INV-Raw Materials-Other   X   -   -   -   X
1726   INV-Raw Materials-Other   X   -   -   -   X
1740   INV-Bogalusa, LA   X   -   -   -   X
    Inventories   X   -   -   -   X
3311   AP-Trade Payable   X   -   -   -   X
3312   AP-Retention Payable   X   -   -   -   X
3313   AP-Material in Transit   X   -   -   -   X
3314   AP-Other-Accts Pay   X   -   -   -   X
3320   AP-Salaries Payable   X   -   -   -   X
3330   AP-EE-Witholdings-Benefits   X   -   -   -   X
3332   AP-HMO-Plans   X   -   -   -   X
3333   AP-Blue Cross Blue Shield Pl   X   -   -   -   X
3334   AP-EE-401K-Employee   X   -   -   -   X
3335   AP-EE-Dental Plan   X   -   -   -   X
3336   AP-EE Universal Life Insurance   X   -   -   -   X
3339   AP-EE-Accidental Death   X   -   -   -   X
3341   AP-EE-Federal Tax-Total   X   -   -   -   X
3342   AP-EE FICA-Total   X   -   -   -   X
87
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
3350   AP-EE-Withholding State   X   -   -   -   X
3351   AP-EE-State Income Tax-Total   X   -   -   -   X
3352   AP-EE-SUI-Total   X   -   -   -   X
3354   AP-EE-Disability L/T   X   -   -   -   X
3362   AP-EE-City Withholdings Total   X   -   -   -   X
3364   AP-EE-Country Withholdings   X   -   -   -   X
3365   AP-EE-VAT Witholdings   X   -   -   -   X
3372   AP-EE-FSA-Medical Costs   X   -   -   -   X
3373   AP-EE-FSA-Dependent Care   X   -   -   -   X
3374   AP-EE-Garnishee Wages   X   -   -   -   X
3378   AP-EE-Plant Emp-Other   X   -   -   -   X
3381   AP-EE-Union Dues   X   -   -   -   X
3382   AP-EE-United Way   X   -   -   -   X
3385   AP-EE-Misc Field Deductions   X   -   -   -   X
3386   AP-EE-Vacation Accrual-Field   X   -   -   -   X
3391   AP-EE-State of NJ Dept of Energy   X   -   -   -   X
3391   AP-Other   X   -   -   -   X
    Accounts Payable   X   -   -   -   X
1412   AP-Download Intercompany   X   -   -   -   X
3399   AP-Download IC / Reclass   X   -   -   -   X
88
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
    Intercompany Accounts Payable   X   -   -   -   X
3611   ECC-Cost to Come-Overbilling   X   -   -   -   X
3711   ADPT-Advance Payments-Gross   X   -   -   -   X
1423   ARO-Claims   X   -   -   -   X
1424   ARO-Misc   X   -   -   -   X
1430   ARO-Other   X   -   -   -   X
1431   ARO-Unapplied Cash   X   -   -   -   X
1441   ARO-Employee Travel   X   -   -   -   X
1442   ARO- Employee Notes Rec.   X   -   -   -   X
1443   ARO-Employee Travel Contra   X   -   -   -   X
1447   ARO-Employee Salaries   X   -   -   -   X
1515   ARO-ST Lease Rec = Loan PPA   X   -   -   -   X
1499   ARO-Reclass   X   -   -   -   X
1421   ARO - Refundable deposits   X   -   -   -   X
1451   ARO - VAT Tax   X   -   -   -   X
1440   ARO - Employee receivables   X   -   -   -   X
1421   ARO - Interest and other   X   -   -   -   X
    Accounts Receivable - Other   X   -   -   -   X
1811   PE-Other   X   -   -   -   X
89
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
1812   PE-Postage/Office Supplies   X   -   -   -   X
1814   PE-Prepaid Taxes / VAT Taxes / Payroll   X   -   -   -   X
1815   PE-Prepaid Travel   X   -   -   -   X
1820   PE-Prepaid Insurance     X   -   -   -   X
1821   PE-Ins-Property   X   -   -   -   X
1822   PE-Ins-Liability   X   -   -   -   X
1823   PE-Prepaid Insurance-Other   X   -   -   -   X
1832   PE-Deposits   X   -   -   -   X
1851   PE-Prpd Rent   X   -   -   -   X
1850   PE-Rent & Deposits accrual   X   -   -   -   X
    PE-Computer Expense   X   -   -   -   X
    PE-Finnish Standards Assoc   X   -   -   -   X
    PE-Misc   X   -   -   -   X
    PE-Property Taxes   X   -   -   -   X
    PE-Software and licence fees   X   -   -   -   X
    PE-Financial Instruments   X   -   -   -   X
    PE-Salaries   X   -   -   -   X
    PE-Reclass   X   -   -   -   X
    Prepaid Expenses   X   -   -   -   X
1911   Current DTA-State   -   X   -   -   X
90
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
1912   Current DTA-State Val Allow   -   X   -   -   X
1921   Current DTA-Federal   -   X   -   -   X
1922   Current DTA-Fed Val Allow   -   X   -   -   X
1941   State of New Jersey   -   X   -   -   X
1942   Current DTA-PPA Adj   -   X   -   -   X
1930   PRT-Foreign Taxes   -   X   -   -   X
    Prepaid and Refundable Income Taxes   -   X   -   -   X
3410    AE-Other State Taxes   X   -   -   -   X
3412    AE-Auto Sales-Use Tax   X   -   -   -   X
3413    AE-Other Sales-Use Tax   X   -   -   -   X
3417    AE-Other Foreign Tax Accrued   X   -   -   -   X
3418    AE-State Franchise Tax   X   -   -   -   X
3420    AE-Audit-Current Annual / Audit Exp   X   -   -   -   X
3426    AE-Audit-Prior Annual   X   -   -   -   X
3430    AE-ER-Other Withholding   X   -   -   -   X
3434    AE-ER-401k   X   -   -   -   X
3442    AE-ER-FICA-Total   X   -   -   -   X
3443    AE-ER-FUTA-Total   X   -   -   -   X
3452    AE-ER-SUI-Total   X   -   -   -   X
91
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
3453    AE-ER-Disability S/T-Total   X   -   -   -   X
3456    AE-ER-Workers Comp Assessment   X   -   -   -   X
3463    AE-Legal-Accrual/Payments   X   -   -   -   X
3471    AE-Salaries Payable   X   -   -   -   X
3472    AE-Payroll Clearing   X   -   -   -   X
3476    AE-Workmans Comp Total   X   -   -   -   X
3479    AE-Other Insurance   X   -   -   -   X
3480    AE-Accrued Exp-Reserve   X   -   -   -   X
3481    AE-Other-General Reserve / IRC   X   -   -   -   X
3482    AE-Other-mainly Deferred Income / Utility Credit   X   -   -   -   X
3483    AE-Other-Special Reserve (bank fee/severance)   X   -   -   -   X
3484    AE-Bonus Accrual   X   -   -   -   X
3485    AE-Royalties   X   -   -   -   X
3487    AE-Restructuring Reserve   X   -   -   -   X
3490    AE-Accrued Exp-Other   X   -   -   -   X
3911    AE-Financial Instruments   X   -   -   -   X
3492    AE-Property Taxes   X   -   -   -   X
3493    AE-Subcontractors   X   -   -   -   X
3494    AE- Other-Real Estate-Div   X   -   -   -   X
3497    AE-Other   X   -   -   -   X
92
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
     AE-Other EE   X   -   -   -   X
     AE-Accrued holidays   X   -   -   -   X
     AE-Utilities   X   -   -   -   X
     AE-Short term portion of Lomelina   X   -   -   -   X
     AE-Leavers provision   X   -   -   -   X
     AE-Retirement and other benefits   X   -   -   -   X
     AE-Rent   X   -   -   -   X
     AE-Consulting fee   X   -   -   -   X
     AE-DPE Security fund   X   -   -   -   X
     AE-Project cost accruals   X   -   -   -   X
     AE-Interest payable   X   -   -   -   X
     AE-R&D accrual   X   -   -   -   X
     AE-IT   X   -   -   -   X
3499    AE-Other-Reclass   X   -   -   -   X
    Accrued Expenses   X   -   -   -   X
2811    DTA-L/T-State Taxes   -   X   -   -   X
2812    DTA-L/T-State Tax Allowance   -   X   -   -   X
2821    DTA-L/T-Federal Taxes   -   X   -   -   X
2822    DTA-L/T-Federal Tax Allowance   -   X   -   -   X
93
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
2831    DTA-L/T-Foreign Taxes   -   X   -   -   X
    Deferred Income Tax Asset   -   X   -   -   X
4511    DTL-L/T-State Taxes   -   -   -   X   X
4512    DTL-L/T-State Taxes ALLOW   -   -   -   X   X
4521    DTL-L/T-Federal Taxes   -   -   -   X   X
4522    DTL-L/T-Fed Val A   -   -   -   X   X
4531    DTL-L/T-Foreign Taxes   -   -   -   X   X
4541    DTL-PPA ADJUST   -   -   -   X   X
    Deferred Income Taxes   -   -   -   X   X
3811    IT-Current-State Tax   -   -   X   -   X
3821    IT-Current-Federal Tax   -   -   X   -   X
3822    IT-Federal Valuation Allowance   -   -   X   -   X
3831    IT-Current-Foreign Tax   -   -   X   -   X
    Income Taxes   -   -   X   -   X
4859   L/T liab for uncertain taxes   -   -   X   -   X
4831   Pension Benefits   -   -   X   -   X
4741   Postr-Liab-FAS 106   -   -   X   -   X
4811   OLT-Liab-Other   -   -   -   X   X
4816   OLT-Environmental Reserve   -   -   -   X   X
4819   OLT-Environmental Reserve   -   -   -   X   X
94
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
    OLT-Deferred items   -       X   -   X
4863   PPA - DILAPIDATIONS   -   -   X   -   X
4864   PPA - UNFAVORABLE LEASES   -   -   -   X   X
4819   PPA - ENVIRONMENTAL   -   -   X   -   X
4842   PPA - MATERIAL DISPUTES   -   -   -   X   X
4842   PPA - CONTRACT ADJUST DEC2015   -   -   X   -   X
    Other Long-Term Liabilities   -   -   X   X   X
1111   Cash In Bank-Functional   -   X   -   -   X
1112   Cash in Bank-Non-Functional   -   X   -   -   X
1120   Petty Cash Total   -   X   -   -   X
1132   Cash-Payroll PNC   -   X   -   -   X
1141   Cash-Field Offices / Branch   -   X   -   -   X
1142   Cash-District Offices   -   X   -   -   X
1143   Cash-Project   -   X   -   -   X
1231   STI- Money Market Accounts   -   X   -   -   X
1241   STI-Other S/T Investments   -   X   -   -   X
    Cash and Equivalents   -   X   -   -   X
1182   Restricted Cash   -   -   X   -   X
1511   INRS-Interco S/T Notes Rec   -   -   X   -   X
95
Account #   Description   Working
Capital
  Cash   Indebtedness   Excluded   Total
$m
2411   INRL-Interco Notes Rec L/T   -   -   X   -   X
3511   INPS-Interco S/T Notes Payable   -   -   X   -   X
4311   INPL-Interco L/T Notes Payable   -   -   X   -   X
3199   CILD-Reclass   -   -   X   -   X
4811   Capital Lease Obligation   -   -   X   -   X
    Loan (including overdrafts) and payables due to financial institutions and out-scope companies   -   -   X   -   X
    Accrued interests     -   -   X   -   X
    Claim reserves for known disputes (Sch 3 Part 1 3.3.6)   -   -   X   -   X
    Capex payable   -   -   X   -   X
    Unpaid liability in respect of non-CFB Business   -   -   X   -   X
    Unpaid Transaction Costs   -   -   X   -   X
    Total   X   X   X   X   X

96

EXECUTION VERSION

 

Schedule 3

 

Part 3
Working Capital Adjustment
(Clause 9)

 

  US$
Working Capital [●]
Base Working Capital (73,400,000)
Working Capital Adjustment [●]
97

EXECUTION VERSION

 

Schedule 3

 

Part 4
Reference Balance Sheet

 

Reported Balance Sheet             Group FW   CFB          
Account # Description Equip
Consulting +
NAP
China Finland Poland Europe
BV
BV Eliminations CFB   $m   Working
Capital
Cash Indebtedness Intercompany Tax Provisions Excluded Total
$m
  Balance Sheet Line Item
2110 CO-Land               1,064,160   1.1   - - - - - - 1.1 1.1   Land, Buildings and Equipment, Net
2120 CO-Land/Yard Improvements               -   -   - - - - - - - -   Land, Buildings and Equipment, Net
2130 CO-Building & Improvements               4,861,554   4.9   - - - - - - 4.9 4.9   Land, Buildings and Equipment, Net
2140 CO-Machinery and Equipment                   -   - - - - - - - -   Land, Buildings and Equipment, Net
2141 CO-Computers               1,355,505   1.4   - - - - - - 1.4 1.4   Land, Buildings and Equipment, Net
2142 CO-Plant Equipment               5,833,185   5.8   - - - - - - 5.8 5.8   Land, Buildings and Equipment, Net
2143 CO-Construction Equipment               -   -   - - - - - - - -   Land, Buildings and Equipment, Net
2144 CO-Other M & E               3,689,606   3.7   - - - - - - 3.7 3.7   Land, Buildings and Equipment, Net
2150 CO-Furniture & Fixtures               490,185   0.5   - - - - - - 0.5 0.5   Land, Buildings and Equipment, Net
2160 CO-Vehicles               568,653   0.6   - - - - - - 0.6 0.6   Land, Buildings