-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DEBPBqIWlbiaB0BOwHufwheVi3i6qRSnvl13p2fmNpWpiwtH5Rpu2vCDIFbfJg+K hxxyXvGQjiUNCBveBAzSFg== 0000950152-99-005254.txt : 19990615 0000950152-99-005254.hdr.sgml : 19990615 ACCESSION NUMBER: 0000950152-99-005254 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19990528 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990614 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL CABLE CORP /DE/ CENTRAL INDEX KEY: 0000886035 STANDARD INDUSTRIAL CLASSIFICATION: DRAWING AND INSULATING NONFERROUS WIRE [3357] IRS NUMBER: 311351333 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-12983 FILM NUMBER: 99645776 BUSINESS ADDRESS: STREET 1: 4 TESSENEER DRIVE CITY: HIGHLAND HEIGHTS STATE: KY ZIP: 41076 BUSINESS PHONE: 6065728000 8-K 1 GENERAL CABLE CORPORATION FORM 8-K 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------- FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 ----------------- Date of Report (Date of earliest event reported): May 28, 1999 GENERAL CABLE CORPORATION ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 1-12983 06-1398235 - ---------------------------- ------------------------- ----------------------- (State or other jurisdiction (Commission File Number) (I.R.S. Employer of incorporation or Identification Number) organization) 4 Tesseneer Drive Highland Heights, KY 41076 ------------------------------------------------------------ (Address of principal executive offices, including zip code) (606) 572-8000 ------------------------------------------------------------ (Registrant's telephone number, including area code) 2 ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS On May 28, 1999, General Cable Corporation (the "Company") completed the first phase of its acquisition of the worldwide energy cable and cable systems businesses of BICC plc and its subsidiaries with a payment to BICC plc of 211.4 million pounds sterling ($339.3 million). Phase I included the acquisition of substantially all of the assets of BICC Cables Corporation, Pyrotenax USA Inc., and BICC Cables Canada Inc., the acquisition of the assets used in the energy cable and cable systems operations in the United Kingdom of BICC plc, BICC Cables Limited and BICC Components Limited and the acquisition of 100% of the issued and outstanding capital shares of BICC General Cable SA, BICC Ceat Cavi Srl, BICC Cables New Zealand Limited, Trans Power Cables Pte Ltd, and BICC Supertension Cables (1980) Limited. These entities have operations in the United States, Canada, the United Kingdom, Spain, Italy and New Zealand. Phase II of the transaction, which is expected to be completed in the third quarter of 1999, will include the acquisition of BICC's Middle Eastern, Asia/Pacific and African cable businesses for aggregate cash consideration of approximately 50 million pounds sterling ($79.9 million). Both the consideration paid in Phase I and the estimated consideration to be paid in Phase II of the acquisition are subject to adjustment under the terms of the asset purchase agreements entered into among the parties to this transaction. The acquisition adds to the Company's existing products low-voltage, medium-voltage and high-voltage power distribution and transmission cable products, and control, signaling, electronic and data communications products and accessories, to serve industrial, utility, OEM, military/government and electrical and communications distributor customers worldwide. The businesses acquired, including those to be acquired upon completion of Phase II, are conducted in 41 manufacturing locations in 16 countries, with representation in an additional 20 countries through regional sales offices. Financing of the purchase price for the acquisition was provided by a syndicate of lenders led by The Chase Manhattan Bank under the terms of a credit agreement which provides credit facilities to the Company for borrowings of up to $1.05 billion to use for the acquisition, refinancing of existing debt and general corporate purposes. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS The following financial statements, pro forma financial information and exhibits are being filed as part of this report: (1) The financial statements required to be filed with respect to the businesses acquired described in Item 2 above are not included in this Report on Form 8-K. Such financial statements will be filed as an amendment to this Form 8-K as soon as practicable, but no later than August 13, 1999. (2) The pro forma financial information required to be filed with respect to the 2 3 businesses acquired described in Item 2 above are not included in the Report on Form 8-K. Such financial information will be filed as an amendment to this Form 8-K as soon as practicable, but no later than August 13, 1999. (3) Exhibits Number Title - ------ ----- 2.1 Assets Sale and Purchase Agreement, made as of April 6, 1999, among BICC Cables Corporation, Pyrotenax USA Inc., BICC Cables Canada Inc., BICC plc, GK Technologies, Incorporated and General Cable Corporation, together with the Schedules to such Agreement. 2.2 Amendment No. 1 to and Assignment of Assets Sale and Purchase Agreement, dated as of May 27, 1999, by and among BICC Cables Corporation, Pyrotenax USA Inc., BICC Cables Canada Inc., BICC plc, GK Technologies, Incorporated, General Cable Corporation, BICC General Pyrotenax Cables Ltd, BICC General Cable (USA) LLC and BICC General Cable Company. 2.3 Sale and Purchase Agreement, made on April 6, 1999, between BICC plc, GK Technologies, Incorporated and General Cable Corporation, together with the Schedules to such Agreement. 2.4 Letter Agreement amending the Sale and Purchase Agreement, dated May, 1999, among GK Technologies, Incorporated, General Cable Corporation and BICC plc. 3 4 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. General Cable Corporation Date: June 11, 1999 By: /s/ Christopher F. Virgulak ------------- ------------------------------------ Name: Christopher F. Virgulak Title: Executive Vice President, Chief Financial Officer and Treasurer 4 5 EXHIBIT INDEX Number Title - ------ ----- 2.1 Assets Sale and Purchase Agreement, made as of April 6, 1999, among BICC Cables Corporation, Pyrotenax USA Inc., BICC Cables Canada Inc., BICC plc, GK Technologies, Incorporated and General Cable Corporation, together with the Schedules to such Agreement. 2.2 Amendment No. 1 to and Assignment of Assets Sale and Purchase Agreement, dated as of May 27, 1999, by and among BICC Cables Corporation, Pyrotenax USA Inc., BICC Cables Canada Inc., BICC plc, GK Technologies, Incorporated, General Cable Corporation, BICC General Pyrotenax Cables Ltd, BICC General Cable (USA) LLC and BICC General Cable Company. 2.3 Sale and Purchase Agreement, made on April 6, 1999, between BICC plc, GK Technologies, Incorporated and General Cable Corporation, together with the Schedules to such Agreement. 2.4 Letter Agreement amending the Sale and Purchase Agreement, dated May, 1999, among GK Technologies, Incorporated, General Cable Corporation and BICC plc. 5 EX-2.1 2 EXHIBIT 2.1 1 Exhibit 2.1 [EXECUTION COPY] BICC Cables Corporation BICC Cables Canada Inc. Pyrotenax USA Inc. and GK Technologies, Incorporated ASSETS SALE AND PURCHASE AGREEMENT relating to the sale and purchase of the energy cable Operations of BICC Cables Corporation, Pyrotenax USA Inc. and BICC Cables Canada Inc. Dated April 6, 1999 2 TABLE OF CONTENTS
Page ---- Background........................................................................................................2 1 Interpretation.............................................................................................3 1.1 Definitions...........................................................................14 1.2 Subordinate Legislation...............................................................14 1.3 [Intentionally Omitted]...............................................................14 1.4 Schedules, etc........................................................................14 1.5 Conflict..............................................................................14 1.6 Information...........................................................................14 1.7 Knowledge.............................................................................15 1.8 Accounting Standards..................................................................15 2 Agreement to Sell the Acquired Assets.....................................................................15 2.1 Sale and Purchase of Acquired Assets..................................................15 2.2 Assumption of Liabilities.............................................................15 2.3 Indemnification.......................................................................19 3 Consideration.............................................................................................28 3.1 Amount and Payment....................................................................28 3.2 Adjustments...........................................................................28 3.3 Method of Payment.....................................................................28 4 Conditions................................................................................................29 4.1 Conditions Precedent..................................................................29 4.2 Responsibility for Satisfaction.......................................................30 4.3 Termination...........................................................................31 5 Action Pending Closing....................................................................................31 5.1 Vendors' General Obligations..........................................................32 5.2 Restrictions on Vendors...............................................................32 5.3 Purchasers' General Obligations.......................................................34 6 Closing...................................................................................................34 6.1 Date and Place........................................................................34 6.2 Closing Events........................................................................34 6.3 Payment of Price......................................................................35 7 Representations and Warranties............................................................................35 7.1 Representations and Warranties from the Vendors; Incorporation of Schedule 8.................................................35 7.2 Warranties from the Purchasers........................................................35 7.3 UPDATING TO CLOSING...................................................................35 8 [Intentionally Omitted]...................................................................................36 9 Net Asset Statement, and Adjustments to the Purchase Price................................................36 9.1 Basis of Preparation of Net Asset Statement...........................................36 9.2 Preparation of Net Asset Statement....................................................36 9.3 Net Asset Statement...................................................................40 10 Transfer Taxes............................................................................................41 11 Post-Closing Date Contract payments received by the Vendors...............................................41 12 Defective Product or Service..............................................................................41
i 3 12.1 Responsibility Allocation ...........................................................41 12.2 Definitions...........................................................................41 12.3 Vendor receives claim.................................................................42 12.4 Purchaser receives claim..............................................................42 12.5 Vendors receive claim for post-Closing product or service.............................43 12.6 Claim made for product or service spanning Closing....................................43 12.7 Indemnities reduced by recovery from third parties....................................43 13 Third Party Consents......................................................................................44 13.1 Failure to Assign.....................................................................44 13.2 Indiana Lease.........................................................................45 14 Employees.................................................................................................47 15 Employee Benefit Arrangements.............................................................................47 16 Environmental.............................................................................................47 17 Post-Closing Obligations..................................................................................47 17.1 The Assumed Liabilities...............................................................47 17.2 Bonds and Guarantees..................................................................48 17.3 Vendors' General Obligations..........................................................48 17.4 Vendors' Continuing Obligation........................................................48 17.5 Change of Name........................................................................49 17.6 ......................................................................................50 17.7 Investment Canada Act.................................................................50 18 Guarantees ...............................................................................................51 18.1 Vendors' Guaranteed Obligations.......................................................51 18.2 Guaranty..............................................................................51 18.3 Purchaser's Guaranteed Obligations....................................................51 18.4 Guaranty..............................................................................51 19 Other Provisions..........................................................................................52 19.1 Announcements.........................................................................52 19.2 Confidential Information..............................................................52 19.3 Permitted Disclosure, etc.............................................................54 19.4 Integration...........................................................................55 19.5 Successors and Assigns; No Third-Party Beneficiaries..................................55 19.6 Amendments and Waivers................................................................56 19.7 Remedies..............................................................................56 19.8 Third Party Costs.....................................................................56 19.9 Costs to Assign Contracts.............................................................56 19.10 Interest..............................................................................57 19.11 Set-Off...............................................................................57 19.12 Long Stop Limitation of Liability.....................................................57 19.13 Exclusivity...........................................................................58 19.14 Notices...............................................................................58 19.15 Severance.............................................................................60 19.16 References to the Reporting Accountants...............................................60 19.17 General Services and Supply Agreement.................................................60 19.18 Counterparts..........................................................................60 19.19 Governing Law and Submission to Jurisdiction..........................................61 19.20 Settlement Attempt....................................................................62 19.21 Appointment of Process Agents.........................................................62 19.22 Currency..............................................................................63 19.23 Certain Restrictive Covenants.........................................................63 19.24 Reliance by Purchasers; Disclosure of Representation and Warranties...................66 19.25 Section Headings......................................................................66
ii 4 19.26 References............................................................................66 19.27 Cooperation...........................................................................66 19.28 Bulk Sales............................................................................66
SCHEDULES - --------- Schedule 1 Operations Schedule 2 [Intentionally Left Blank] Schedule 3 Allocation of Purchase Price Schedule 4 Certain Third Party Consents Schedule 5 Warranties Not Updated to Closing Schedule 6 Closing Events; US Vendors Accounting Periods; Bill of Sale; Tax Deed of Covenant Schedule 7 Net Asset Statement Schedule 8 Representations and Warranties given by the Vendors under Section 7.1 Schedule 9 Warranties from the Purchasers Schedule 10 Transfer Taxes Schedule 11 Employees Schedule 12 Employee Benefit Arrangements Schedule 13 [Intentionally Left Blank] Schedule 14 Intentionally Left Blank Schedule 15 Intellectual Property Schedule 16 Environment Schedule 17 Excluded Assets Schedule 18 Bonds and Guarantees iii 5 THIS AGREEMENT is made on April 6, 1999 among (1) BICC CABLES CORPORATION a company incorporated in Delaware, the United States whose principal place of business is at One Crosfield Avenue, West Nyack, NY; (2) PYROTENAX USA INC. (together with BICC Cables Corporation, the US VENDOR), a company incorporated in Delaware, the United States. (3) BICC CABLES CANADA INC. (the CANADIAN VENDOR) a company incorporated under the federal laws of Canada whose principal place of business is at 265 Yorkland Boulevard, Suite 500, North York, Ontario M2J 155; (4) BICC PLC (the VENDORS' GUARANTOR) a company incorporated in England and Wales whose registered office is at Devonshire House, Mayfair Place, London W1X 5FH; (5) GK TECHNOLOGIES, INCORPORATED (the US PURCHASER) a company incorporated in New Jersey, the United States whose principal place of business is at 4 Tesseneer Drive, Highland Heights, KY 41076; (6) GK TECHNOLOGIES, INCORPORATED (the CANADIAN PURCHASER) a company incorporated in New Jersey, the United States whose principal place of business is at 4 Tesseneer Drive, Highland Heights, KY 41076; and (7) GENERAL CABLE CORPORATION (the PURCHASERS' GUARANTOR) a company incorporated in Delaware, the United States whose principal place of business is at 4 Tesseneer Drive, Highland Heights, KY 41076. BACKGROUND The Vendors' Guarantor engages in the energy cables business worldwide, both directly and indirectly, through various subsidiaries and joint ventures, including through the US Vendor and the Canadian Vendor. The Purchasers' Guarantor and the Vendors' Guarantor intend to enter into transactions for the sale by the Vendors' Guarantor of its worldwide energy cables business. The parties intend that the portion of the energy cables business conducted worldwide other than in North America be transferred to Affiliates of the Purchasers' Guarantor under the Non-North American Agreements and that the portion of the energy cables business conducted in North America be 2 6 transferred to US Purchaser and Canadian Purchaser pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, intending to be legally bound hereby, the parties hereto agree as follows: 1 INTERPRETATION In this Agreement, including its Schedules, the headings shall not affect its interpretation and, unless the context otherwise requires, the provisions in this Section 1 apply: 1.1 DEFINITIONS ACCOUNTS RECEIVABLE means (a) any right to payment for goods sold, leased or licensed or for services rendered, whether or not it has been earned by performance, whether billed or unbilled, and whether or not it is evidenced by any Contract; (b) any note receivable; or (c) any other receivable or right to payment of any nature, in each case arising in the ordinary course of the Operations, but excluding any Excluded Assets; ACQUIRED ASSETS means the US Assets and the Canadian Assets; AFFILIATE means, relative to any person, any other person which, directly or indirectly, controls or is controlled by or under common control with such person. For the purposes of this definition, "control" (including correlative terms such as "controlling", "controlled by" and "under common control with") means, relative to any person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting stock, by agreement or otherwise; provided, however, that beneficial ownership of 20% or more of the voting stock of a person shall be deemed to be control; AGREED UPON NET ASSET VALUE has the meaning given to it in Section 9.3.3; AGREEMENT means this Assets Sale and Purchase Agreement; ASBESTOS LIABILITIES has the meaning given to it in Section 2.3.2(f); ASSUMED LIABILITIES means, collectively, the US Assumed Liabilities and the Canadian Assumed Liabilities, and ASSUMED LIABILITY means any one of such Assumed Liabilities; 3 7 BALANCE SHEET DATE means December 31, 1998; BULK SALES LAWS means the Uniform Commercial Code Bulk Transfer provisions of any Jurisdiction (or any similar Laws of any applicable Jurisdiction) relating to bulk sales which are applicable to the sale of the Acquired Assets hereunder; BUSINESS DAY means a day on which banks are open for business in London and New York City (excluding Saturdays, Sundays and public holidays); CANADIAN ASSETS means all right, title, and interest in and to, as the same shall exist on the Closing Date, all of the assets, business, properties and rights of every nature, kind and description of the Canadian Vendor used in or relating to the Canadian Business, wheresoever located and whether or not reflected on the books and records of the Canadian Vendor, including all of its prepayments, deposits and escrows, Accounts Receivable, Inventory, Tangible Property, Real Property, Permits, Software, Contract Rights (other than Contract Rights with respect to the Contracts identified on Schedule 13) Intangible Property and goodwill, and claims, causes of action and other legal rights and remedies related to the foregoing; provided, however, that, any term or provision hereof to the contrary notwithstanding, the Canadian Assets shall not include any of the Excluded Assets; CANADIAN ASSUMED LIABILITIES has the meaning given to it in Section 2.2.4; CANADIAN BUSINESS means the energy cables business conducted by the Canadian Vendor which, together with the US Business, constitutes the Operations, summary details of which are contained or referred to in Schedule 1; CANADIAN EXCLUDED LIABILITIES has the meaning given to it in Section 2.2.6; CASH EQUIVALENTS means "cash equivalents" as defined by the accounting policies and principles set out in Schedule 7; CLOSING means the closing of the sale and purchase of the Acquired Assets and the assumption of the Assumed Liabilities pursuant to this Agreement; CLOSING DATE means the date on which the Closing takes place; 4 8 COLLECTIVE BARGAINING AGREEMENTS means the legally recognized agreements, including benefit agreements, letters of understanding and identified past practices between US Vendor or Canadian Vendor and any labor union or organization lawfully recognized to represent the employees of any facility; CODE means the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder; COMBINED ACCOUNTS means the accounts of the US Vendor and the Canadian Vendor relating to the Operations for the twelve-month financial period ended on the Balance Sheet Date, extracted from the aggregated accounts of the Global Operations for such financial period audited by Arthur Andersen, copies of which are included in the Disclosure Letter; CONFIDENTIAL INFORMATION has the meaning given to it in Section 19.3.3; CONTINUING EMPLOYEES means those employees of the US Vendor or the Canadian Vendor who will become employees of Purchaser on or after Closing; CONTRACT RIGHT means any right, power or remedy of any nature under any Contract, including rights to receive property or services or otherwise derive benefits from the payment, satisfaction or performance of another person's obligations, rights to demand that another person accept property or services or take any other actions, and rights to pursue or exercise remedies or options; CONTRACTS means any written or oral contract, agreement, instrument, order, arrangement, commitment or understanding of any nature, including sales orders, purchase orders, leases, subleases, data processing agreements, maintenance agreements, license agreements, sublicense agreements, loan agreements, promissory notes, instruments, security agreements, pledge agreements, deeds, mortgages, guaranties, indemnities, warranties, employment agreements, consulting agreements, sales representative agreements, joint venture agreements, buy-sell agreements, options or warrants including quotations or tenders for contracts which remain open for acceptance; 5 9 DATA ROOM means collectively the data room containing documents relating to the Vendors and its Affiliates at the offices of Linklaters & Paines, 1345 Avenue of the Americas, New York, New York, at the US Vendor's Lawyers and at Borden & Elliot, Scotia Plaza, Toronto, Ontario; DISCLOSURE LETTER means the letter which is arranged in Sections corresponding to the Sections of this Agreement of even date with this Agreement from the Vendors to the Purchasers disclosing (i) information, in reasonable detail, which constitutes exceptions to the Warranties and (ii) details of other matters referred to in this Agreement; DOLLAR or $ means United States dollar; EMPLOYEE BENEFIT ARRANGEMENTS means (i) any "employee welfare benefit plan" or "employee pension benefit plan" (as those terms are respectively defined in sections 3(1) and 3(2) of ERISA), (ii) any pension, retirement or supplemental pension plan or deferred compensation plan, incentive compensation plan, savings plan, stock plan, retiree medical benefit, unemployment compensation plan, vacation pay, severance pay, bonus or benefit arrangement, insurance or hospitalization program or any other fringe benefit arrangements for any current or former employee, director, consultant or agent, whether pursuant to legislation, contract, arrangement, custom or informal understanding, which does not constitute an employee benefit plan (as defined in section 3(3) of ERISA), or (iii) any employment agreement; EMPLOYEES means all persons employed by US Vendor or the Canadian Vendor in the Operations, including, those persons on short or long-term disability, leave of absence or legally required leave; EMPLOYMENT LETTER means the letter from the Purchasers to the Vendors supplied on the date hereof, as it may be updated in accordance with the terms of Schedule 11, indicating which Employees with employment Contracts listed on Section 1.1 of Schedule 12 of the Disclosure Letter will become Continuing Employees (as to whom Purchasers will assume such employment Contracts) and which Employees will not become Continuing Employees (which non-Continuing Employees may include persons who may receive consulting agreements from the Purchasers for a fixed period of time); ENCUMBRANCE means any claim, charge, mortgage, easement, leasehold, assessment, restriction, reservation, security, lien, security interest, pledge, option, equity, power of sale, 6 10 conditional sale, prior assignment, hypothecation or encumbrance, burden, charge, adverse claim or third party right of any kind or nature whatsoever; EXCLUDED ASSETS means the assets described or referred to in Schedule 17 which are excluded from the sale and purchase of the Acquired Assets set forth in this Agreement; EXCLUDED LIABILITIES has the meaning given to it in Section 2.2.6, and includes all Asbestos Liabilities, Marion Liabilities and Trenton Liabilities; GENERAL SERVICES AND SUPPLY AGREEMENT means the service and supply agreement to be entered into with effect from or following Closing, between or among one or more of the persons included in the Vendors' Group and one or more persons included in the Purchasers' Group; GLOBAL OPERATIONS means the Operations (as defined herein) and the "Operations" (as defined in the Non-North American Sale and Purchase Agreement), taken as a whole; GOVERNMENTAL AUTHORITY means any international, national, federal, state, provincial, local, municipal or other governmental department, commission, board, bureau, agency or instrumentality, or any court or tribunal, in each case whether of the United States or Canada or other jurisdiction; HOLDING COMPANY means a company which controls, whether pursuant to an agreement with other shareholders or otherwise, a majority of the voting rights of another company; INCOME TAX ACT (CANADA) means the Income Tax Act (Canada), R.S.C. 1985, c.1 (5th Supp.), as amended, and the regulations prescribed thereunder; IMPROVEMENTS mean all buildings and all other structures, parking areas, fixtures or other improvements on, over or under the Land; INCLUDING means including without limitation; INTANGIBLE PROPERTY means any name, corporate name, fictitious name, registered or unregistered trademark, trademark application, service mark, service mark application, trade name, brand name, product name, slogan, trade secret, Know-how, patent, patent application, copyright, 7 11 copyright application, design, logo, formula, invention, product right, technology, or other intangible asset of any nature, whether in use, under development or design, or inactive; INVENTORY means all raw materials, supplies, work in progress, packaging materials, finished goods, parts and any other inventory of any nature whatsoever; JUDGMENT means any order, writ, injunction, citation, award, decree or other judgment of any nature of any foreign, federal, state, provincial or local court, governmental body, administrative agency, regulatory authority or arbitration tribunal; JURISDICTIONS means the United States and Canada; KNOW-HOW means confidential and proprietary industrial and commercial information and techniques in any form (including paper, electronically stored data, magnetic media, film and microfilm) including drawings, formula, test results, reports, project reports and testing procedures, shop practices, instruction and training manuals, tables of operating conditions, market forecasts, specifications, quotations, tables, lists and particulars of customers and suppliers, marketing methods and procedures, show-how and advertising copy; LAND means all that certain Real Property of the US Vendor or Canadian Vendor (other than Excluded Assets) upon which the Improvements are located, as more particularly described in Schedule 1 attached hereto and made a part hereof, together with all property rights, easements, tenements, hereditaments, rights-of-way, development rights, air rights, entitlements, unused densities, privileges and appurtenances thereto; all leases, rents and profits derived therefrom, all right, title and interest of the US Vendor and/or the Canadian Vendor in and to any land lying in the bed of any street, road, highway or avenue, open or proposed, public or private, in front of or adjoining all or any part of the Land to the center line thereof, all right, title and interest of the US Vendor and/or the Canadian Vendor in and to any unpaid award or payment included in the Acquired Assets which may now or hereafter be payable in respect of any taking, by condemnation of any portion of the Land or Improvements by any Governmental Authority; and all right, title and interest of the US Vendor and/or the Canadian Vendor in and to any unpaid award included in the Acquired Assets for damage or destruction to the Land or any part thereof by reason of any fire or other casualty, or resulting from any change of grade of any street, road, highway or avenue adjacent to the Real Property of the US Vendor of the Canadian Vendor; all strips and gores adjoining, and adjacent to the Land; and all oil, gas and mineral rights; 8 12 LAW means any provision of any foreign, federal, state, provincial or local law, statute, ordinance, charter, constitution, treaty, code, rule, Canadian guideline, policy or protocol, or regulation; LEASED PROPERTY means the leased Real Property brief details of which are set out in Schedule 1; LIABILITIES means all liabilities, indebtedness, claims, demands, damages, deficiencies, Judgments, actions, causes of action, duties and obligations of every description, whether deriving from contract, common law, statute or otherwise, whether present or future, actual or contingent, ascertained or unascertained or disputed and whether owed or incurred severally or jointly or as principal or surety; LOSS OR LOSSES means all losses, Liabilities, costs (including costs of investigation, interest costs, fines, penalties, and legal fees and costs), charges, expenses, actions, proceedings, investigations, claims and demands; MANAGEMENT ACCOUNTS means the unaudited management accounts relating to the Operations for the financial period ending on February 28, 1999; MARION LIABILITIES has the meaning given to it in Section 2.3.2(g); MATERIAL CONTRACTS has the meaning given to it in Section 5.3.1 of Schedule 8; NET ASSET STATEMENT has the meaning given to it in Section 9.1; NET ASSET VALUE means the aggregate of the value of the Acquired Assets less the aggregate of all Assumed Liabilities as shown in the Net Asset Statement; NON-NORTH AMERICAN AGREEMENTS means the Non-North American Sale and Purchase Agreement, the Non-North American Subsidiary Agreements and the Non-North American Tax Deed of Covenant; NON-NORTH AMERICAN SALE AND PURCHASE AGREEMENT means the Sale and Purchase Agreement entered into on the date hereof between, among others, the Vendors' Guarantor and the 9 13 Purchasers' Guarantor in connection with the sale of the worldwide energy cables operations of the Vendors' Guarantor other than the Operations; NON-NORTH AMERICAN SUBSIDIARY AGREEMENTS means the Subsidiary Agreements as defined in the Non-North American Sale and Purchase Agreement; NON-NORTH AMERICAN TAX DEED OF COVENANT means Tax Deed of Covenant as defined in the Non-North American Sale and Purchase Agreement; OPERATIONS means, collectively, the US Business and the Canadian Business, including without limitation, those operations briefly described on Schedule 1 attached hereto and made a part hereof; PAYMENT ACCOUNT DETAILS means, in relation to any payment to be made under or pursuant to this Agreement, the name, account number, account location and other details specified by the payee and necessary to effect payment (whether by wire or other electronic means of transfer) to the payee; PERMIT means any license, permit, approval, waiver, order, authorization, consent, certificate of occupancy, order, warrant, confirmation, permission, certificate, right or privilege of any nature, granted, issued, approved or allowed by any Governmental Authority; PERSON means any natural person, sole proprietorship, joint venture, corporation, firm, association, partnership, limited liability partnership, limited liability company, cooperative, estate, government, trust, governmental body, administrative agency, regulatory authority or any other entity, whether acting in an individual, fiduciary or other capacity; (POUND) means British pounds sterling; PURCHASE PRICE has the meaning given in Section 3.1; PURCHASERS means the US PURCHASER and the CANADIAN PURCHASER and PURCHASER means any of such Purchasers; 10 14 PURCHASERS' GROUP means the Purchasers, their Subsidiaries and their holding company, as such group may from time to time exist; REAL PROPERTY means any real estate, Land, building, condominium, town house, structure or other real property of any nature, all shares of stock or other ownership interests in cooperative or condominium associations or other forms of ownership interest through which interests in real estate may be held, all leasehold estates with respect to any of the foregoing, and all appurtenant and ancillary rights thereto, including easements, covenants, water rights, sewer rights and utility rights, including, without limitation, the Improvements and the Leased Properties, or any one or more of them; RELEVANT PURCHASER means, when used to reflect any matter relating to the purchase of the Canadian Assets, the Canadian Purchaser, and when used to reflect any matter relating to the purchase of the US Assets, the US Purchaser; RELEVANT VENDOR means, when used to reflect any matter relating to the sale of the Canadian Assets, the Canadian Vendor, and when used to reflect any matter relating to the sale of US Assets, the US Vendor; REPORTING ACCOUNTANTS means Ernst & Young LLP, or another nationally recognized firm of independent public accountants that are independent of the Vendors' Group and the Purchasers' Group and are selected by agreement of the US Vendor and the US Purchaser; RESTRICTIVE COVENANTS has the meaning given in Section 19.23; SCHEDULE 4 CONTRACTS has the meaning given to it in Section 2.3.2(e); SENIOR EMPLOYEE means any Employee whose annual cash compensation exceeds $90,000 or its local equivalent; SENIOR EXECUTIVES means George N. Benjamin, III, Hans P. Berndorff, George M. Priggins, Bill Meechan, JoAnn Prior, Don Aken, Jack Lavin and Tom Ragion; SOFTWARE means any computer program, operating system, applications system, firmware or software of any nature, whether operational, under development or inactive, including all object 11 15 code, source code, technical manuals, user manuals and other documentation therefor, whether in machine-readable form, programming language or any other language or symbols, and whether stored, encoded, recorded or written on disk, tape, film, memory device, paper or other media of any nature; SUBSIDIARY means, relative to any person, (x) any corporation, association or other business entity more than 50% of the outstanding shares of voting stock of which is owned directly or indirectly by such person and (y) any partnership in which such person is a general partner; TANGIBLE PROPERTY means any furniture, fixtures, leasehold improvements, vehicles, equipment (including, without limitation, office, computer and other equipment), machinery, tools, spare parts, forms, supplies and other tangible personal property of any nature, whether such is owned or leased; TAX means any federal, state, provincial, local, or foreign income, gross receipts, license, payroll, employment, health, social services, education, excise, severance, stamp, occupation, premium, windfall profits, environmental (including Taxes under Code Section 59A) customs, duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, goods and services, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not; TAX DEED OF COVENANT means the deed of covenant against liability for Tax to be entered into by the US Vendor and the Canadian Vendor indemnifying the US Purchaser and the Canadian Purchaser, as applicable; TAX RETURN means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof; TAX STATUTE OF LIMITATIONS DATE means the close of business on the 90th day after the expiration of the applicable statue of limitations in respect of the relevant Tax, including any extensions thereof (or if such date is not a Business Day, the next Business Day); 12 16 THIRD PARTY CONSENTS means all consents, permits, approvals, authorizations or waivers required from third parties, other than Governmental Authorities, for or necessary as a result of the conveyance, transfer, assignment, novation or subletting of any of the Acquired Assets to any Purchaser, including the Third Party Consents set forth on Schedule 4, and THIRD PARTY CONSENT means any one of the Third Party Consents; TRENTON LIABILITIES has the meaning given to it in Section 2.3.2(h). US ASSETS means all right, title, and interest in and to, as the same shall exist on the Closing Date, all of the assets, business, properties and rights of every nature, kind and description of the US Vendor used in or relating to the US Business, wheresoever located and whether or not reflected on the books and records of the US Vendor, including without limitation, all of its prepayments, deposits and escrows, Accounts Receivable, Inventory, Tangible Property, Real Property, Permits, Software, Contract Rights (other than Contract Rights with respect to the Contracts identified on Schedule 13), Intangible Property and goodwill, and claims, causes of action and other legal rights and remedies related to the foregoing; provided, however, that any term or provision hereof to the contrary notwithstanding, the US Assets shall not include any of the Excluded Assets; US ASSUMED LIABILITIES has the meaning given to it in Section 2.2.1; US BUSINESS means the energy cables business conducted by the US Vendor which, together with the Canadian Business, constitutes the Operations; US EXCLUDED LIABILITIES has the meaning given to it in Section 2.2.3; US VENDOR'S LAWYERS means Mayer, Brown & Platt of 1675 Broadway, New York, New York 10019; VENDOR OWNED REAL PROPERTY means the Real Property owned by the US Vendor or the Canadian Vendor that is used in the Operations and is not an Excluded Asset; VENDORS means the US Vendor and Canadian Vendor and VENDOR means any of such Vendors; 13 17 VENDORS' GROUP means the US Vendor, the Canadian Vendor, the Vendors' Guarantor and each Subsidiary of the Vendors' Guarantor, as such group may from time to time exist; provided, however, that after giving effect to the Closing, Vendors' Group shall cease to include the Group Companies, as defined in the Non-North American Sale and Purchase Agreement; WARRANTIES means the representations and warranties of the Vendors contained in this Agreement (including the Schedules hereto) and the Tax Deed of Covenant and WARRANTY means any one of the Warranties. 1.2 SUBORDINATE LEGISLATION Any reference to a statutory provision shall include any rules or regulations made from time to time under that provision which are in force at the date of this Agreement. 1.3 [INTENTIONALLY OMITTED] 1.4 SCHEDULES, ETC. References herein to this Agreement shall include the Schedules and Subschedules to this Agreement and references to Sections are to Sections to this Agreement or Sections to the Schedules and/or Subschedules. 1.5 CONFLICT The provisions of this Agreement shall control in the event of any conflict between the provisions in this Agreement and the Non-North American Sale and Purchase Agreement with respect to the matters set forth in this Agreement. 1.6 INFORMATION Any reference herein to books, records or other information means books, records or other information in any form including paper, electronically stored data, magnetic media, film and microfilm. 14 18 1.7 KNOWLEDGE Any Warranty or statement of the Vendors qualified by the expression "to the best knowledge of" or "so far as a person is aware" or any similar expression with respect to any Vendor shall be deemed to refer to the actual knowledge, as of the date such Warranties are made or deemed to be made, of such Senior Executives after having made due and careful inquiry. 1.8 ACCOUNTING STANDARDS Unless otherwise specified, all accounting terms used herein shall be interpreted, and all accounting determinations and computations hereunder shall be made, in accordance with the accounting policies and principles referred to in Section 1 of Schedule 7 (exclusive, however, of Sections 2 and 3 of such Schedule). 2 AGREEMENT TO SELL THE ACQUIRED ASSETS 2.1 SALE AND PURCHASE OF ACQUIRED ASSETS Subject to the terms and conditions of this Agreement and the Tax Deed of Covenant at Closing, the US Vendor shall sell the US Assets to the US Purchaser, and the Canadian Vendor shall sell the Canadian Assets to the Canadian Purchaser, and the US Purchaser shall purchase the US Assets and the Canadian Purchaser shall purchase the Canadian Assets, in each case with the benefit of the Warranties, covenants and indemnities contained in this Agreement, free from all Encumbrances (except as expressly provided in this Agreement or disclosed in the Disclosure Letter). 2.2 ASSUMPTION OF LIABILITIES 2.2.1 US ASSUMED LIABILITIES Subject to Sections 2.2.2 and 2.2.3, the US Purchaser shall assume, duly and punctually pay, satisfy, discharge, perform or fulfill all of the following Liabilities of the US Vendor (collectively, the US ASSUMED LIABILITIES): 15 19 (a) arising under the Permits and Contracts of the US Vendor (other than the Contracts listed on Schedule 17 and the employment Contracts for Employees named in the Employment Letter who will not be Continuing Employees); (b) expressly assumed by the US Purchaser or any other Relevant Purchaser (other than the Canadian Purchaser) elsewhere under this Agreement; or (c) any other Liabilities of the US Vendor, but only to the extent that they are taken into account in the calculation of, or provided for in, the Net Asset Statement. 2.2.2 TREATMENT OF CERTAIN PRE-CLOSING US LIABILITIES Notwithstanding anything to the contrary contained in Section 2.2.1, unless included (or provided for) in the calculation of Liabilities in the Net Asset Statement, US Purchaser shall not assume or be deemed to have assumed any Liability of the US Vendor described below: (a) to perform any obligation or pay any Liability of the US Vendor which was required to be performed or paid prior to Closing; including, payment of any salaries, compensation (excluding unused vacation, sick or severance pay, whether or not accrued) rents, Taxes, utility charges and any and all fees and charges due under the Permits and Contracts transferred or assigned to or held in trust for or held for the benefit of the US Purchaser pursuant to this Agreement for periods prior to Closing; or (b) for or in respect of any product manufactured and/or sold or service performed by the US Vendor prior to Closing, except to the extent (but only to the extent) that such Liability in respect of any product manufactured or service performed has resulted from any US Purchaser's breach of its obligations under Section 12 hereof. 2.2.3 US EXCLUDED LIABILITIES Notwithstanding anything to the contrary contained herein, US Purchaser does not assume and shall in no event be liable for any Liabilities of the US Vendor to any person, whether fixed or inchoate, known or unknown, liquidated or unliquidated, secured or unsecured, contingent or otherwise, except for those Liabilities specifically assumed by US Purchaser in Section 2.2. All 16 20 Liabilities of the US Vendor not so assumed (collectively, US EXCLUDED LIABILITIES) shall be and remain solely US Vendor's responsibility; 2.2.4 CANADIAN ASSUMED LIABILITIES Subject to Sections 2.2.5 and 2.2.6, the Canadian Purchaser shall assume, duly and punctually pay, satisfy, discharge, perform or fulfill all of the following Liabilities of the Canadian Vendor (collectively, the CANADIAN ASSUMED LIABILITIES): (a) arising under the Permits and Contracts of the Canadian Vendor (other than the Contracts listed on Schedule 17 and the employment Contracts for Employees named in the Employment Letter who will not be Continuing Employees); (b) expressly assumed by the Canadian Purchaser elsewhere under this Agreement; or (c) any other Liabilities of the Canadian Vendor, but only to the extent that they are taken into account in the calculation of, or provided for in, the Net Asset Statement. 2.2.5 TREATMENT OF CERTAIN PRE-CLOSING CANADIAN LIABILITIES Notwithstanding anything to the contrary contained in Section 2.2.4, unless included (or provided for) in the calculation of Liabilities in the Net Asset Statement, Canadian Purchaser shall not assume or be deemed to have assumed any Liability of the Canadian Vendor described below: (a) to perform any obligation or pay any Liability of the Canadian Vendor which was required to be performed or paid prior to Closing; including payment of any salaries, compensation (excluding unused vacation, sick or severance pay, whether or not accrued) rents, Taxes, utility charges and any and all fees and charges due under the Permits and Contracts transferred or assigned to or held in trust for or held for the benefit of the Canadian Purchaser pursuant to this Agreement for periods prior to Closing; or (b) for or in respect of any product manufactured and/or sold or service performed by the Canadian Vendor prior to Closing, except to the extent (but only to the extent) that 17 21 such Liability in respect of any product manufactured or service performed has resulted from any Canadian Purchaser's breach of its obligations under Section 12 hereof. 2.2.6 CANADIAN EXCLUDED LIABILITIES Notwithstanding anything to the contrary contained herein, Canadian Purchaser does not assume and shall in no event be liable for any Liabilities of the Canadian Vendor to any person, whether fixed or inchoate, known or unknown, liquidated or unliquidated, secured or unsecured, contingent or otherwise, except for those Liabilities specifically assumed by Canadian Purchaser in Section 2.2. All Liabilities of the Canadian Vendor not so assumed (collectively, CANADIAN EXCLUDED LIABILITIES and together with the US Excluded Liabilities, EXCLUDED LIABILITIES) shall be and remain solely Canadian Vendor's responsibility. 2.2.7 SPECIAL PROVISIONS RELATING TO CERTAIN ENVIRONMENTAL ISSUES Notwithstanding any term or condition set forth in Schedule 16 relating to environmental matters: (a) US Vendor, upon receiving a request for payment, from time to time, from US Purchaser, shall within thirty (30) days thereafter, reimburse Purchaser dollar for dollar up to an aggregate maximum amount of $500,000 for Purchasers' reasonable expenses (including internal overhead costs) for machine guarding at any of the facilities used in the Operations. US Vendor's obligations under this clause (a) shall constitute Vendors' sole obligation to Purchasers for machine guarding and machine guarding obligations relating to the Operations. (b) US Vendor, upon receiving a request for payment, from time to time, from US Purchaser, shall within thirty (30) days thereafter, reimburse US Purchaser dollar for dollar up to an aggregate maximum amount of $500,000, less any amount paid by US Vendor prior to Closing, for installation of a cooling water recirculation system and other equipment or modifications necessary to meet wastewater discharge limits at the Malvern, Arkansas facility. "Other equipment" for this purpose includes a dry cure byproduct filter box; a sump evaporator and an electric byproduct precipitator. US Vendor's obligations under this clause (b) shall constitute Vendors' sole obligation to Purchasers for improvements necessary to meet wastewater discharge limits at the Malvern, Arkansas facility. 18 22 (c) US Vendor, upon receiving a request for payment, from time to time, from US Purchaser, shall within thirty (30) days thereafter, reimburse US Purchaser dollar for dollar up to an aggregate maximum amount of $350,000 for installation of a wastewater recirculation system or other wastewater system modifications necessary to meet wastewater discharge limits at the Wilimantic, Connecticut facility. US Vendor's obligations under this clause (c) shall constitute Vendors' sole obligation to Purchasers for improvements necessary to meet wastewater discharge limits at the Wilimantic, Connecticut facility. 2.3 INDEMNIFICATION The parties hereto agree as follows: 2.3.1 Survival; Assertion of Claims, etc. (a) All representations, warranties and covenants of the parties to this Agreement contained in this Agreement (or the Schedules hereto) shall survive the Closing and continue in effect for the following periods: (i) The covenants of each party to this Agreement shall continue until the obligations required to be performed or satisfied by the covenants have been performed or satisfied; (ii) The representations and warranties of the US Vendor and Canadian Vendor shall expire as follows: (x) with respect to the representations and warranties relating to the environment set forth on Schedule 16, five years after the Closing Date; (y) with respect to the representation and warranties relating to Tax matters as set forth in the Tax Deed of Covenant, until the end of the applicable Tax Statute of Limitations Date; and (z) with respect to all other representations and warranties, two years after the Closing Date; and (iii) The representations and warranties of the Purchasers' Guarantor and the Purchaser shall expire two years after the Closing Date. (b) Each party to this Agreement must assert any claim for indemnification involving a representation, warranty or covenant against the other party before the expiration of any applicable survival period. Any indemnity claim pursuant to this Section 2.3 shall 19 23 (if it has not been previously satisfied, settled or withdrawn) be deemed to be withdrawn six months after the relevant time limit set forth above unless legal proceedings in respect of such claim (i) have been commenced and (ii) are being pursued in good faith and with reasonable diligence. Notwithstanding any provision to the contrary contained in this Agreement (other than the preceding sentence), so long as such indemnity claim is asserted timely, such claim will continue to be valid and assertable even though the survival period may subsequently expire before such claim is resolved. (c) All claims for indemnification pursuant to this Agreement or the Tax Deed of Covenant shall be subject to the limitations, notice requirements, time periods and other terms and conditions of this Section 2.3. 2.3.2 INDEMNIFICATION OF PURCHASERS' INDEMNIFIED GROUP The US Vendor and the Canadian Vendor shall, jointly and severally, indemnify, defend and hold harmless the US Purchaser, the Canadian Purchaser, the Purchasers' Guarantor and their officers, directors, Affiliates, agents and representatives (collectively, the PURCHASERS' INDEMNIFIED GROUP) from and against any and all Losses (including for purposes of Section 2.3.2(e) only, consequential damages) with respect to the following: (a) any misrepresentation or breach of Warranty, covenant or agreement of the US Vendor or the Canadian Vendor contained in this Agreement (or the Schedules hereto); (b) any and all of the Vendors' Excluded Liabilities whether known or unknown on the date hereof or on the Closing Date, and whether or not such Liabilities constitute or arise from a breach of any Warranty made by either Vendor herein, including any such Liability which is deemed to be, or becomes, a Liability of any member of the Purchasers' Indemnified Group by virtue of any applicable Law and which is not otherwise assumed by the Purchasers under this Agreement; (c) without duplication, any Losses which any member of the Purchasers' Indemnified Group may suffer by reason of any member of the Purchasers' Indemnified Group taking any reasonable action to avoid, resist or defend against any Liability arising in connection with or referred to in Section 2.3.2(a) or Section 2.3.2(b); 20 24 (d) subject to the provisions of the Tax Deed of Covenant, any Liability in respect of any Tax which each Relevant Purchaser is indemnified against pursuant to the Tax Deed of Covenant; (e) the Purchasers' failure to (i) receive any necessary Third Party Consent with respect to any of the Contracts listed on Schedule 4 (the SCHEDULE 4 CONTRACTS) or (ii) otherwise provide the Purchasers with the economic benefits of the Schedule 4 Contracts; (f) the presence or alleged presence of or exposure by any person to any asbestos or asbestos-containing materials in any of the materials or products manufactured, sold, or otherwise distributed by the US Vendor or the Canadian Vendors prior to Closing, including such goods and materials as are in process or in inventory as of the Closing Date (any such Losses described in this clause (f) being, collectively, the ASBESTOS LIABILITIES); (g) any Liability in respect of lead detected in the fill material at the Real Property used in the Operations located at Marion, Indiana (the MARION LIABILITIES); provided that Purchaser does not voluntarily undertake a sampling program within the fill area in an attempt to further characterize the nature and extent of the alleged presence of lead or any other constituent or compound at the Marion, Indiana Real Property site, nor does Purchaser voluntarily undertake any soil-intrusive construction activities in said fill area; and provided further that Vendors shall not be liable as result of the foregoing to Purchaser for any claim by Purchaser for property damage to Purchaser's Marion, Indiana Real Property arising out of or with respect to the presence of lead in fill material as described herein. The provisions of Section 7.4 of Schedule 16 to this Agreement shall apply to any Remedial Action (as defined in Schedule 16) required to be performed at the Marion, Indiana Real Property; and (h) any Liability in respect of solvent detected in the soil or groundwater at the Trenton, Ontario facility (the TRENTON LIABILITIES); provided that no Vendor shall be liable as result of the foregoing to any Purchaser for any claim for property damage to the Trenton, Ontario Real Property arising out of or with respect to the solvent in the soil or groundwater as described herein. The provisions of Section 7.4 of Schedule 16 to this Agreement shall apply to any Remedial Action (as defined in Schedule 16) required to be performed at the Trenton, Ontario Real Property. 2.3.3 INDEMNIFICATION OF VENDORS' INDEMNIFIED GROUP 21 25 The Purchaser and the Canadian Purchaser shall, jointly and severally, indemnify, defend and hold harmless the US Vendor, the Canadian Vendor and the Vendors' Guarantor and their officers, directors, Affiliates, agents and representatives (the VENDORS' INDEMNIFIED GROUP) from and against any and all Losses with respect to any of the following: (a) any misrepresentation or breach of any representation, warranty, covenant or agreement of the Purchasers contained in this Agreement (or in any Schedule hereto); (b) all Assumed Liabilities and any other Liability to the extent such Liability arises as a result of the acts or omission of any Purchaser and/or any other person in the course of carrying on the Operations after Closing, including any such Liability which is or is deemed to be or becomes a Liability of any member of the Vendors' Indemnified Group by virtue of any applicable Law and which is not otherwise an Excluded Liability; and (c) any Losses which any member of the Vendors' Indemnified Group may suffer by reason of any member of the Vendors' Indemnified Group taking any reasonable action to avoid, resist or defend against any Liability referred to in Section 2.3.3(a) or (b). 2.3.4 Procedure If any third party shall notify any party to this Agreement (an INDEMNIFIED PARTY) with respect to any matter which may give rise to a claim for indemnification against any other party (an INDEMNIFYING PARTY) under this Section 2.3, then the Indemnified Party shall notify the Indemnifying Party thereof promptly; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any liability or obligation hereunder, except to the extent otherwise expressly provided herein or to the extent (but solely to the extent) the Indemnifying Party thereby is damaged. In the event any Indemnifying Party notifies the Indemnified Party within 15 days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, (i) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party, (ii) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent counsel to the Indemnified Party concludes reasonably that it has a conflict of interest), (iii) the Indemnified Party will not consent to the entry of any Judgment or enter into any settlement with respect to the matter without the written 22 26 consent of the Indemnifying Party (not to be withheld or delayed unreasonably), and (iv) the Indemnifying Party will not consent to the entry of any Judgment with respect to the matter, or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto, without the written consent of the Indemnified Party (not to be withheld or delayed unreasonably). If the Indemnifying Party fails to notify the Indemnified Party within 15 days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, the Indemnified Party may defend against the matter in any manner it reasonably may deem appropriate. 2.3.5 LIMITATIONS ON INDEMNIFICATION (a) No person included in the Purchasers' Indemnified Group shall be entitled to any recovery with respect to any claim for indemnification under this Agreement or the Tax Deed of Covenant in respect of any such claim arising from any single circumstance or series of related circumstances if the amount of such claim (excluding interest, costs and expenses) does not exceed $20,000; provided that claims relating to a series of related circumstances shall be aggregated for this purpose; (b) No person included in the Purchasers' Indemnified Group shall be entitled to recover with respect to any claim for indemnification under this Agreement or the Tax Deed of Covenant until the aggregate amount of all such claims exceeds $750,000 (the BASKET), in which event the Purchasers' Indemnified Group shall, subject to the other provisions of this Section 2.3.5 be entitled to such indemnification for all amounts, including all amounts forming any part of the Basket; and (c) The aggregate amount of Liability of the Vendors' Guarantor, US Vendor, Canadian Vendor and any other member of Vendors' Group under this Agreement, the Tax Deed of Covenant and the Non-North American Agreements shall not exceed (pound)160 million (the CAP), it being understood that any Liabilities for indemnification arising under Section 2.3.2(e) of this Agreement or Clause 11.4 of the Non-North American Sale and Purchase Agreement shall not be applied against the Cap but shall only be applied against and shall be limited to the Contract Cap (as defined below). (d) Any term or provision of this Section 2.3.5 to the contrary notwithstanding, (i) no provision of clauses (a), (b) or (c) of this Section 2.3.5 shall apply to (x) any 23 27 Excluded Liabilities (including Asbestos Liabilities, Marion Liabilities and Trenton Liabilities), (y) any Liability resulting from any breach of any Warranty set forth in Section 8.1.1, 8.4.1 or 9.9.15 of Schedule 8 or (z) any Liability in respect of any matter described to Clause 2.3.1 or 8.10 of the Non- North American Sale and Purchase Agreement, and (ii) the aggregate amount of Liability of the Vendors' Guarantor, US Vendor, Canadian Vendor and any other member of Vendors' Group under Section 2.3.2(e) of this Agreement and Clause 11.4 of the Non-North American Sale and Purchase Agreement shall not exceed (pound)10 million (the CONTRACT CAP), it being understood that any amount of Liability under such Section 2.3.2(e) and Clause 11.4 shall be applied against the Contract Cap only and shall not be applied against the Cap. 2.3.6 INSURANCE PROCEEDS Notwithstanding any contrary provision in this Section 2.3, any recovery with respect to a claim asserted hereunder will be reduced by the amount of any insurance proceeds actually recovered by the claimant which directly relates to such claim. The indemnified party agrees to diligently pursue all claims covered by any insurance policy. 2.3.7 TAXES In calculating the Liability of the Vendors or Vendors' Guarantor under this Section 2.3, there shall be taken into account the amount (if any) by which any Tax for which a Relevant Purchaser would otherwise have been accountable or liable to be assessed is actually reduced or extinguished as a result of the matter giving rise to such Liability. The amount of such reduction or extinguishment shall be reasonably determined (in writing with appropriate detail) by the independent certified accounting firm or chartered accountants which prepares or reviews the relevant Tax Returns on behalf of the Relevant Purchaser. A copy of such determination shall be delivered promptly to the Vendors' Guarantor upon its request. 2.3.8 CONTINGENT LIABILITIES No person included in the Purchasers' Indemnified Group shall be entitled to recover with respect to any claim for indemnification under this Agreement or the Tax Deed of Covenant in respect of any Liability which is contingent unless and until such contingent liability becomes an actual liability and is due and payable; provided that this Section 2.3.8 shall not operate to avoid an indemnity claim made in respect of a contingent liability within the applicable time limits 24 28 specified in Section 2.3.1 if such indemnity claim is asserted on a timely basis and in accordance with Section 2.3.1 (even if such liability does not become an actual liability until after the expiry of such period). 2.3.9 PROVISIONS IN THE ACCOUNTS No person included in the Purchasers' Indemnified Group shall be entitled to recover with respect to any claim for indemnification under this Agreement or the Tax Deed of Covenant in respect of any such claim if any allowance, provision or reserve is made for the matter giving rise to such claim in the Net Asset Statement (regardless of whether the allowance, provision or reserve is adequate to cover such claim). 2.3.10 OTHER LIMITATIONS No person included in the Purchasers' Indemnified Group shall be entitled to recover with respect to any claim for indemnification under this Agreement or the Tax Deed of Covenant in respect of any matter, act, omission or circumstance (or any combination thereof) (including the aggravation of a matter or circumstance) to the extent that the same would not have occurred but for: (a) any change in accounting or Tax policy, basis or practice introduced or becoming effective after the Closing Date; (b) the effectiveness of, or any change in, any Law, rule or regulation or, to the extent generally available, any published administrative practice of any Governmental Authority, including any increase in the rates of Tax or any imposition of Tax or any withdrawal of relief from Tax, occurring after the date of this Agreement; or (c) any act or omission of a Relevant Purchaser or any member of the Purchasers' Group, or their respective directors, employees or agents or successors in title, which occurs after the Closing and which is outside the ordinary course of business. 2.3.11 NET BENEFIT 25 29 To the extent that, as a result of any event or circumstance giving rise to a claim for indemnification, a person included in the Purchasers' Indemnified Group receives a corresponding savings or net benefit resulting from such event or circumstance, the amount of such claim for indemnification shall be reduced by the amount of such savings or benefit. In the case of any Tax Matter, the amount of such savings or benefit shall be reasonably determined (in writing with appropriate detail) by the independent certified accounting firm or chartered accounting firm which prepares or reviews the relevant Tax Returns on behalf of the Relevant Purchaser. A copy of such determination shall be delivered promptly to the Vendors' Guarantor upon its request. 2.3.12 MITIGATION OF LOSS Each Purchaser hereby covenants and agrees, for itself and each other member of the Purchaser's Indemnified Group, for the benefit of the members of the Vendors' Group, that after a claim for indemnity under this Agreement, the Non-North American Agreements or the Tax Deed of Covenant has arisen or is reasonably likely to arise, it shall take all commercially reasonable actions to mitigate the Losses of the members of the Vendors' Group under this Section 2.3; provided that (x) all reasonable costs and expenses (including overhead and administrative costs and expenses) of the Purchasers or any other member of Purchasers' Indemnified Group resulting from such actions shall be reimbursed by the Vendors and (y) no Purchaser shall be required to take any action under this Section 2.3.12 which is outside of the ordinary course of the Operations. 2.3.13 PRIOR RECEIPT If any member of the Vendors' Group pays an amount in discharge of any claim for indemnity under this Agreement or the Tax Deed of Covenant and a member of the Purchasers' Indemnified Group subsequently recovers (whether by payment, discount, credit, relief or otherwise) from a third party a sum which is referable to the subject matter of such claim and which would not otherwise have been received by such member of the Purchasers' Indemnified Group, the Purchasers shall pay, or shall procure that the Relevant Purchaser pays, to the US Vendor or the Canadian Vendor, as applicable, an amount equal to the lesser of (i) the sum recovered from the third party less any reasonable costs and expenses incurred in obtaining such recovery or (ii) the amount previously paid by the member of the Vendors' Group to discharge such claim for indemnity. 26 30 2.3.14 DOUBLE CLAIMS The members of the Purchasers' Indemnified Group shall not be entitled to recover from any member of the Vendors' Group under this Agreement, the Non-North American Agreements or the Tax Deed of Covenant more than once in respect of the same damage suffered. In furtherance and not in limitation of the foregoing, the member of the Vendors' Group shall not be liable in respect of any breach of this Agreement if and to the extent that the Losses are or have been included in a claim under the Tax Deed of Covenant or the Non-North American Agreements which has been satisfied, nor shall the members of the Vendors' Group be liable in respect of a claim under the Tax Deed of Covenant or the Non-North American Agreements if and to the extent that the Losses are or have been included in a claim for breach of this Agreement which has been satisfied. 2.3.15 ENVIRONMENTAL CLAIMS In the event of any conflict between this Agreement and the provisions of Schedule 11, 12 or 16, the provisions of such Schedule shall supersede and control any conflicting Sections of this Agreement. 2.3.16 CONSEQUENTIAL AND PUNITIVE DAMAGES No member of the Purchasers' Indemnified Group shall be entitled to indemnification pursuant to this Agreement (i) with respect to consequential damages arising out of or in connection with this Agreement, except no such limitation shall apply with respect to such damages arising out of or in connection with the breach of the Restrictive Covenants or the failure to obtain the Third Party Consents or otherwise provide the Purchasers with the economic benefits of the Schedule 4 Contracts as set forth in Section 2.3.2(e), or (ii) with respect to punitive damages arising out of or in connection with this Agreement other than resulting from Vendors' fraud. In furtherance of the foregoing, no member of the Purchasers' Indemnified Group shall institute, directly or indirectly, and each Purchaser hereby permanently waives, on its behalf and on behalf of all other members of Purchasers' Indemnified Group, any right to commence any action or proceeding of any kind claiming consequential or punitive damages; provided, however, no such limitation or waiver shall apply to, and any member of the Purchasers' Indemnified Group shall continue to have the right to commence an action or proceeding claiming consequential damages with respect to the breach of the Restrictive Covenants or the failure to obtain the Third Party 27 31 Consents or otherwise provide the Purchasers with the economic benefits of the Schedule 4 Contracts as set forth in Section 2.3.2 (e) or claiming punitive damages with respect to Vendors' fraud. 3 CONSIDERATION 3.1 AMOUNT AND PAYMENT (a) The aggregate consideration for the purchase of the Acquired Assets and the assumption of the Assumed Liabilities pursuant to this Agreement shall be an amount (such amount, as adjusted pursuant hereto, the PURCHASE PRICE) which is equal to (pound)104.4 million; (b) The Purchase Price and the Assumed Liabilities shall be allocated as set out in Schedule 3. The consideration is exclusive of any transfer Taxes in respect of which the provisions of Schedule 10 shall apply. The Purchase Price shall be paid by the US Purchaser on behalf of itself and the Canadian Purchaser to the US Vendor on behalf of itself and the Canadian Vendor, or as otherwise agreed by the US Purchaser and the US Vendor. The determination of the allocations of the Purchase Price and the amount of Assumed Liabilities among the Acquired Assets as set forth on Schedule 3 shall be made in accordance with Section 1060 of the Code and by mutual agreement of the US Vendor and the US Purchaser with respect to the US Assets and by mutual agreement between the Canadian Vendor and Canadian Purchaser with respect to the Canadian Assets. Each of the US Vendor, the Canadian Vendor, the Vendors' Guarantor and the Relevant Purchaser shall sign and submit all necessary forms to report this transaction for Tax purposes of any Governmental Authority, in whichever combination necessary, in accordance with Schedule 3, and shall not take a position for Tax purposes inconsistent therewith. 3.2 ADJUSTMENTS The Purchase Price may be reduced or increased in accordance with the provisions of Section 9 or in accordance with any other provisions of this Agreement stated to take effect as an adjustment to the Purchase Price. Any adjustment to the Purchase Price shall be allocated as provided by Temp. Treas. Reg. Sec. 1.1060-IT(f) (or any successor regulation). 3.3 METHOD OF PAYMENT 28 32 Wherever in this Agreement provision is made for payment by one party (the PAYER) to another (the PAYEE), such payment shall be made by wire transfer of immediately available funds to an account designated by the payee as specified in the Payment Account Details of the payee. 4 CONDITIONS 4.1 CONDITIONS PRECEDENT The respective obligations of the parties to this Agreement to consummate the transactions to be performed by them pursuant to this Agreement are subject to the satisfaction of the following conditions: 4.1.1 the passing at a general meeting of the Vendors' Guarantor of a resolution to approve the transactions contemplated by this Agreement; 4.1.2 the Non-North American Sale and Purchase Agreement becoming unconditional in accordance with its terms (other than the satisfaction of any condition relating to this Agreement); 4.1.3 any waiting period applicable to the acquisition of the Acquired Assets under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR ACT) shall have terminated or expired; 4.1.4 no action, suit or proceeding shall be pending or threatened before any Governmental Authority wherein an unfavorable Judgment, order, decree, stipulation, injunction or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such Judgment, order, decree, stipulation, injunction or change shall be in effect); and 4.1.5 the Non-North American Sale and Purchase Agreement shall not have terminated pursuant to Section 4.5 as a result of a Material Adverse Effect (as defined in such agreement). 29 33 4.2 RESPONSIBILITY FOR SATISFACTION 4.2.1 The Vendors shall use their best efforts to ensure the satisfaction of the condition set out in Section 4.1.1 as soon as reasonably practicable after the date hereof subject to compliance by the directors of the Vendors' Guarantor with their fiduciary duties. 4.2.2 The Vendors' Guarantor shall, as soon as reasonably practicable after the date hereof, mail a circular to the shareholders of the Vendors' Guarantor so as to inform them of this Agreement and so as to convene the general meeting of the Vendors' Guarantor referred to in Section 4.1.1 on or before May 15, 1999. 4.2.3 Each of the US Purchaser and US Vendor will as soon as practicable after the date hereof make all filings which are required to be made with any Governmental Authority under the HSR Act in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, with respect to the HSR Act, neither the US Vendor nor the US Purchaser shall be required to: (i) divest or hold separate any assets including assets of any Affiliate; or (ii) agree to any limitation on their respective freedom of action with respect to, or their ability to retain any of their (or their Affiliate's) other assets or businesses. 4.2.4 The US Purchaser and US Vendor shall promptly inform each other of all communications with any Governmental Authority in connection with the condition referred to in Section 4.1.3. 4.2.5 Without limitation to the generality of the provisions set forth in this Section 4.3, all requests and inquiries from any Governmental Authority shall be dealt with by the US Vendor and the US Purchaser in consultation with each other. 4.2.6 The Vendors and the Purchasers shall each use all reasonable commercial efforts to cause the condition set forth in Section 4.1.2 to be satisfied as soon as reasonably practicable. 30 34 4.2.7 The Vendors' Guarantor shall promptly give notice to the US Purchaser of the satisfaction of the condition set out in Section 4.1.1, but not later than the close of business on the day following satisfaction of such condition. 4.2.8 The US Purchaser shall promptly give notice to the Vendors' Guarantor of satisfaction of the condition in Section 4.1.3, but not later than the close of business on the day following the satisfaction of each such condition. 4.3 TERMINATION 4.3.1 The parties to this Agreement may terminate this Agreement as follows: (a) the parties to this Agreement may terminate this Agreement by mutual written consent of all the parties at any time prior to the Closing; (b) the Purchasers may terminate this Agreement by giving written notice to the Vendors at any time prior to the Closing if the Closing shall not have occurred on or before July 31, 1999 by reason of the failure of any condition precedent under Section 4.1 (unless the failure results primarily from either Purchaser being in material breach of any warranty, or covenant contained in this Agreement); or (c) the Vendors may terminate this Agreement by giving written notice to the US Purchaser at any time prior to the Closing if the Closing shall not have occurred on or before July 31, 1999 by reason of the failure of any condition precedent under Section 4.1 (unless the failure results primarily from the Vendors being in material breach of any Warranty, or covenant contained in this Agreement). 4.3.2 In the event of termination of this Agreement as provided in Section 4.3.1, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of any party, other than the provisions of Sections 19.1, 19.2 and 19.8 and except to the extent that such termination results from the willful and material breach by a party of any of its representations, warranties, covenants or other agreements set forth in this Agreement. 5 ACTION PENDING CLOSING 31 35 5.1 VENDORS' GENERAL OBLIGATIONS Pending Closing the Vendors shall: 5.1.1 conduct the Operations as a going concern in the ordinary course of business; and 5.1.2 subject to Section 5.3, allow the Purchasers and their agents, upon reasonable notice and at reasonable times, reasonable access to the Vendors' personnel, facilities and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Operations; permit and assist Purchasers and Purchasers' representatives to contact the Vendors' customers, prospects and suppliers; and provide Purchasers and Purchasers' representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Operations and with such additional financial, operating and other data and information regarding the Operations, as Purchasers may reasonably request; provided that the obligations of the Vendors under this Section shall be subject to any applicable confidentiality agreements relating to the Operations and shall not extend to allowing access to information which is reasonably regarded as confidential to the activities of Vendors' Group otherwise than in connection with the Operations. 5.2 RESTRICTIONS ON VENDORS 5.2.1 Without prejudice to the generality of Section 5.1.1, between the period from the date hereof to the Closing Date, the Vendors shall discuss with representatives of the Purchasers (nominated in advance by the Purchasers for such purpose and agreed to in writing by the US Vendor) in reasonable detail those actions that are material to the Operations, and the Vendors shall not, without the prior written consent of the Purchasers, which consent in the case of subsection (h) will not be unreasonably withheld or delayed : (a) conduct the Operations in any manner except in the ordinary course of business it being agreed and understood that all established procedures for the approval of Contracts shall continue to be followed; or (b) except for liabilities incurred in the ordinary course of business (which for purposes hereof shall include budgeted capital expenditures within the approval limits of the 32 36 general management of the Operations), pay or incur or agree to pay or incur any amount, obligation or Liability relating to such Operations (absolute or contingent) (including in respect of any purchase, lease or other acquisition of assets) that is more than $150,000 in any specific case or $400,000 in the aggregate; or (c) grant any general or uniform increase in the rates of pay or benefits to the Employees (or any class thereof) in excess of 3.5% per annum; or, except in connection with any severance or termination that will occur prior to Closing, enter into any new severance agreement that would be required to be disclosed pursuant to the Warranties contained herein; or enter into any collective bargaining agreement with respect to the Operations other than as may be required by Law or Contract; or (d) except in the ordinary course of business, sell, transfer, mortgage, encumber, abandon or otherwise dispose of any assets or Liabilities relating to the Operations, except (x) for dispositions of property not greater than $400,000 in the aggregate, (y) dispositions of Inventory relating to the Operations in the ordinary course of business or (z) as contemplated by this Agreement; or (e) grant credit to any customer or distributor of the Operations on terms substantially more favorable than the terms on which credit has been extended to such customer or distributor in the past or change the terms of any credit previously extended; or (f) settle any dispute, waive any right or cancel any debt or claim on behalf of or relating to the Operations other than in the ordinary course of business or that involves a payment or loss of benefit to the Operations in excess of $150,000; (g) take any action or omit to take any action, which action or omission will result in a breach of its Warranties and covenants contained herein; (h) enter into any Material Contract; provided that this covenant shall not apply to (i) any Material Contract resulting from the submission in the of ordinary course of business of any bid or tender on or prior to the date hereof for the supply or manufacture of products or services or (ii) any supply or delivery of products pursuant to a purchase order under any supply Contract in effect on the date hereof; or 33 37 (i) make any material changes in the terms or conditions of employment of, or employ, or agree to employ, any Senior Employee. 5.2.2 Between the date hereof and the Closing, the Vendors shall, in good faith, use all commercially reasonable efforts to preserve the Operations intact, retaining the services of the current employees, salesmen, contractors, agents and representatives of the Operations and maintaining the good will of suppliers, customers and persons having business relations in respect of the Operations. 5.2.3 Between the date hereof and the Closing, the Vendors shall (i) conduct the Operations in the ordinary course in a manner consistent with past practices, (ii) maintain all material Insurance policies, Permits and the material Contracts which are material to the Operations in full force and effect and (iii) comply in all material respects with all applicable Permits and Laws. 5.3 PURCHASERS' GENERAL OBLIGATIONS Each Purchaser hereby covenants and agrees that, prior to Closing, only those employees, directors, agents, representatives or advisors of Purchasers who have been identified in writing to George N. Benjamin, III, Peter Zinkin and Hans P. Berndorff shall communicate with any employees, agents, representatives, advisors, suppliers, customers or prospects of the Vendors regarding the transactions contemplated by this Agreement or visit any of the Real Properties. 6 CLOSING 6.1 DATE AND PLACE Closing shall take place at the offices of US Vendor's Lawyers or at such other location agreed to by the parties, on the last Business Day of the US Vendor's accounting period (as set out in Part 2 of Schedule 6) which occurs after each of the conditions precedent set forth in Section 4.1 is satisfied or waived as permitted pursuant to this Agreement or at such other place, time or date as may be agreed between the US Purchaser and the US Vendor, provided that such later date shall be the last Business Day of an accounting period of the US Vendor; 6.2 CLOSING EVENTS 34 38 On Closing, the parties shall cause the events set forth in Part 1 of Schedule 6 for which they are respectively responsible to occur. Either party may waive the obligations of the other party as set forth in Part 1 of Schedule 6. 6.3 PAYMENT OF PRICE At the Closing against delivery of the Acquired Assets free and clear of all Encumbrances (except for such Encumbrances expressly permitted in this Agreement), and assumption of the Assumed Liabilities pursuant to the terms of this Agreement, the US Purchaser on behalf of itself and the Canadian Purchaser shall pay the US Vendor on behalf of itself and the Canadian Vendor, in the manner specified in Section 3.3, an amount which is equal to the amount set forth in Section 3.1. 7 REPRESENTATIONS AND WARRANTIES 7.1 REPRESENTATIONS AND WARRANTIES FROM THE VENDORS; INCORPORATION OF SCHEDULE 8 Knowing that the Purchasers are relying thereon, each of the Vendors, jointly and severally, represent and warrant to the Purchasers as set forth on Schedule 8, and, with respect to Vendors' Warranties set forth therein, Schedules 11 and 16, subject in each case to any matter which is disclosed in the Disclosure Letter. 7.2 WARRANTIES FROM THE PURCHASERS Knowing that the Vendors are relying thereon, each of the Purchasers, jointly and severally, represent and warrant to the Vendors as set forth on Schedule 9 and, with respect to Purchasers' representations and warranties set forth therein, Schedules 11 and 16. 7.3 UPDATING TO CLOSING 7.3.1 The Vendors further represent and warrant to the Purchasers that: (i) subject to matters disclosed in the Disclosure Letter, the Warranties (other than those set out in Schedule 5) shall be true and accurate in all respects and not misleading in any respect at Closing, in each case as if they had been given at Closing; and 35 39 (ii) if prior to Closing, any Vendor shall become aware of any event or circumstance which results in or is reasonably likely to result in any of the Warranties being unfulfilled, untrue, misleading or incorrect in any material respect at Closing, the US Vendor shall promptly notify the US Purchaser in writing thereof prior to Closing. 7.3.2 The Purchasers further represent and warrant to the Vendors that if prior to the Closing, any Purchaser shall become aware of any event or circumstance which results in or is reasonably likely to result in any of the Warranties being untrue, misleading or incorrect in any material respect at Closing, such Purchaser shall promptly notify the US Vendor in writing thereof prior to Closing. 8 [INTENTIONALLY OMITTED] 9 NET ASSET STATEMENT, AND ADJUSTMENTS TO THE PURCHASE PRICE 9.1 BASIS OF PREPARATION OF NET ASSET STATEMENT As soon as practicable and in any event not later than 40 days following the Closing Date, the US Vendor shall prepare, or cause to be prepared, a statement (the NET ASSET STATEMENT) of the aggregate amount of the Acquired Assets less the aggregate amount of the Assumed Liabilities as at Closing, determined in accordance with the principles set forth in Schedule 7. 9.2 PREPARATION OF NET ASSET STATEMENT 9.2.1 The draft Net Asset Statement shall be delivered to the US Purchaser by the US Vendor within 60 days following the Closing Date. Prior to such delivery, the US Vendor shall so far as is practicable consult with the US Purchaser with a view to reducing the potential areas of disagreement relating to such draft Net Asset Statement. 9.2.2 In order to enable the US Vendor to prepare and the US Vendor's accountants to review the draft Net Asset Statement, the Purchasers shall keep up-to-date and make available to the US Vendor's representatives and to the US Vendor's accountants all books and records relating to the Operations during normal office hours and co-operate with them with regard to the preparation and review of the draft Net Asset Statement. The Purchasers agree, in so far as it is reasonable to do so, to make available the services of the Employees (at reasonable times and 36 40 upon reasonable notice and at reasonable intervals) to assist the US Vendor in the performance of its duties under this Agreement. 9.2.3 Unless within 60 days of delivery of the draft Net Asset Statement pursuant to Section 9.2.1, the US Purchaser gives notice to the US Vendor that it disagrees with the draft Net Asset Statement or any item thereof, which notice shall state the reasons for such disagreement in reasonable detail and specify the adjustments which in the US Purchaser's opinion should be made to the draft Net Asset Statement in order to comply with the requirements of this Agreement (the US PURCHASER'S DISAGREEMENT NOTICE), the draft Net Asset Statement shall be final and binding on the parties for all purposes. If the US Purchaser timely delivers a valid US Purchaser's Disagreement Notice within such 60-day period, the parties shall attempt in good faith to reach agreement in respect thereof and, if they are unable to do so within 21 days of such notification, either party may by notice to the other require that the draft Net Asset Statement be referred to the Reporting Accountants (an APPOINTMENT NOTICE). 9.2.4 Within 21 days of the giving of an Appointment Notice, the US Vendor may by notice to the US Purchaser indicate that, in the light of the fact that the US Purchaser has not accepted the draft Net Asset Statement in its entirety, it wishes the Reporting Accountants to consider matters relating to the Net Asset Statement in response to those specified in the US Purchaser's Disagreement Notice, such notice stating in reasonable detail the reasons for such additional consideration and in what respects the US Vendor believes that the draft Net Asset Statement should be altered (the US VENDOR'S DISAGREEMENT NOTICE). 9.2.5 The Reporting Accountants shall be engaged jointly by the parties on the terms set out in this Section 9.2 and otherwise on such terms as shall be agreed; provided that neither party shall unreasonably (having regard, inter alia, to the provisions of this Section 9.2) 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 30 days of their identity having been determined (or such longer period as the parties may agree) then, unless one party 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. 9.2.6 Except to the extent that the parties agree otherwise, the Reporting Accountants shall determine their own procedure except that: 37 41 (a) apart from procedural matters and as otherwise set out in this Agreement, the Reporting Accountants shall determine only: (i) whether any of the arguments for an alteration to the draft Net Asset Statement put forward in the US Purchaser's Disagreement Notice or the US Vendor's Disagreement Notice is correct in whole or in part; and (ii) if so, what alterations should be made to the draft Net Asset Statement in order to comply with the requirements of this Agreement; (b) the Reporting Accountants shall apply the principles set out in Schedule 7; (c) the Reporting Accountants shall make their determination pursuant to Section (a) above as soon as is reasonably practicable but in any event, unless otherwise specified, within 40 days of the referral to them; and (d) the procedure of the Reporting Accountants shall: (i) provide the parties a reasonable opportunity to make written and oral submissions to them; (ii) require that the parties supply each other with a copy of any written submissions at the same time as they are made to the Reporting Accountants; (iii) permit each party to be present while oral submissions are being made by any other party; and (iv) provide that the Reporting Accountants shall not be entitled to determine the scope of their own jurisdiction. 9.2.7 The Reporting Accountants' determination pursuant to Section 9.2.6(a) shall (i) be made in writing and delivered to the parties promptly and (ii) unless otherwise agreed by the parties include reasons, in reasonable detail, for each relevant determination. 38 42 9.2.8 The determination of the Reporting Accountants of any matter falling within their jurisdiction shall be final and binding on the parties upon delivery thereof pursuant to Section 9.2.7, except 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, without limitation, the determination of the Reporting Accountants shall be deemed to be incorporated into the draft Net Asset Statement, which shall then be final and binding on the parties except in the case of manifest error as provided herein. 9.2.9 The expenses of the Reporting Accountants shall be borne as they shall direct at the time they make any determination under Section 9.2.6(a) or, in the absence of such direction, equally between the US Purchaser, on the one hand, and the US Vendor, on the other. 9.2.10 The parties 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, without limitation, the Purchasers shall keep up to date and, subject to reasonable notice, make available to the Vendors' representatives, the Vendors' accountants and the Reporting Accountants, all books and records relating to the Operations during normal office hours during the period from the appointment of the Reporting Accountants to the making of the relevant determination. 9.2.11 Subject to Section 9.2.12, nothing in this Section 9.2 shall entitle a party or the Reporting Accountants access to any information or document which is protected by legal professional privilege, or which has been prepared by the other party or its accountants or other professional advisors with a view to assessing the merits of any claim or argument. 9.2.12 A party shall not be entitled by reason of Section 9.2.11 to refuse to supply such part or parts of documents as contain only the facts on which the relevant claim or argument is based. 9.2.13 Each party and the Reporting Accountants shall, and shall cause each of their respective accountants and other advisors to keep all information and documents provided to them pursuant to this Section 9.2 confidential and shall not use the same for any purpose, except for use in connection with the preparation of the Net Asset Statement, the proceedings of the Reporting Accountants or another matter arising out of this Agreement or in defending any claim or argument or alleged claim or argument relating to this Agreement or its subject matter. 39 43 9.3 NET ASSET STATEMENT Once the US Vendor and the US Purchaser reach (or pursuant to Section 9.2.3 are deemed to reach) agreement on the draft Net Asset Statement or the draft Net Asset Statement is finally determined at any stage of the procedures set out in this Section 9: 9.3.1 the draft Net Asset Statement as so agreed or determined shall constitute the Net Asset Statement for the purposes of this Agreement and shall be final and binding on the parties; and 9.3.2 the Net Asset Value shall be derived from the Net Asset Statement. 9.3.3 NET ASSETS The parties hereto agree as follows: (a) if the Net Asset Value is less than (pound)138 million (the AGREED UPON NET ASSET VALUE), then the US Vendor (on behalf of itself and the Canadian Vendor) shall pay to the US Purchaser (on behalf of itself and the Canadian Purchaser) an amount equal to the difference between the Agreed Upon Net Asset Value and the Net Asset Value; or (b) if the Net Asset Value is more than the Agreed Upon Net Asset Value, then the US Purchaser (on behalf of itself and the Canadian Purchaser) shall pay to the US Vendor (on behalf of itself and the Canadian Vendor) an amount equal to the difference between the Net Asset Value and the Agreed Upon Net Asset Value; such payment to be made no later than the third Business Day following agreement or determination of the Net Asset Statement in accordance with this Section 9; 9.3.4 Where any payment is required to be made pursuant to this Section 9.3: (a) interest shall accrue on the relevant amount calculated from the Closing Date in accordance with Section 19.10; 40 44 (b) the Purchase Price shall be deemed reduced or increased accordingly; and (c) the allocation of the consideration in Schedule 3 shall be adjusted accordingly in such manner as the US Vendor on behalf of itself and the Canadian Vendor and the US Purchaser on behalf of itself and the Canadian Purchaser shall agree in accordance with Schedule 3. 10 TRANSFER TAXES The provisions of Schedule 10 shall apply. 11 POST-CLOSING DATE CONTRACT PAYMENTS RECEIVED BY THE VENDORS To the extent that any payment is made to the Vendors in respect of any Contract after the Closing Date, the Vendors shall receive the same as trustee and pay the same to the Purchasers (net of any Tax payable by the Vendors thereon) as soon as reasonably practicable following receipt. 12 DEFECTIVE PRODUCT OR SERVICE 12.1 RESPONSIBILITY ALLOCATION The Vendors and the Purchasers agree that any defective product (as defined in Section 12.2 below) manufactured (as defined in Section 12.2 below) and/or sold or defective service (as defined in Section 12.2 below) supplied prior to Closing in connection with the Operations shall be the responsibility of the US Vendor or Canadian Vendor, as the case may be; and that any defective product manufactured and/or sold or defective service supplied after Closing in connection with the Operations shall be the responsibility of the US Purchaser or Canadian Purchaser, as the case may be. 12.2 DEFINITIONS A "defective product" or a "defective service" means a product or service supplied or provided in connection with the Operations that does not conform to its express or implied 41 45 contractual requirements, whether in terms of performance, quality, time of delivery or in any other respect. A product shall be considered as "manufactured" when it has successfully passed through final testing at the factory of the Operations and any reference to manufacturing or manufacture in this Section 12 shall have such a meaning. 12.3 VENDOR RECEIVES CLAIM (a) If, following Closing, a Vendor receives a claim from any person in respect of a defective product manufactured and/or sold or defective service supplied before Closing, it shall inform the Purchasers immediately and take steps to investigate, report on, and take (in its view) appropriate and prompt remedial action in respect of such defective product or defective service. (b) If the claim can be settled by a payment alone, the US Vendor or the Canadian Vendor, as appropriate, shall be responsible for meeting the contractual obligations of the supplier/provider of the defective product or defective service in that respect. (c) If the claim involves the supply of a replacement and/or the removal, repair and reinstallation of the defective product or the re-engineering or re-doing of work pursuant to a service supplied, the Relevant Purchaser shall, perform the necessary work for such Vendor, at Purchaser's fully absorbed manufacturing cost plus 5%. (d) If the claim involves both a payment and the repair or replacement of a product or part of a product or the re-engineering or other re-doing of work in respect of a service, the payment shall remain the responsibility of the Vendors, but the provisions of clause (c) above shall apply to the repair, replacement or re-engineering. 12.4 PURCHASER RECEIVES CLAIM If, following Closing, a claim in respect of a defective product manufactured and sold or defective service supplied before Closing is received by the US Purchaser or Canadian Purchaser, such Purchaser shall promptly notify the Vendors of the claim and: 12.4.1 if, in the joint opinion of US Vendor and US Purchaser, the claim is partly or wholly justified on contractual grounds, the US Purchaser or the Canadian Purchaser, as appropriate, shall take all reasonable steps as instructed by the Relevant Vendor, without prejudicing 42 46 the legitimate interests of the Vendors, to repair, replace and make good the defective product or defective service and/or compensate the claimant to the extent appropriate in accordance with the terms of the relevant applicable contract. The US Vendor and/or the Canadian Vendor shall indemnify and hold harmless the Relevant Purchaser against all Losses which arise in connection with the repair, replacement or making good of the defective product or defective service, provided that if the Losses result from the repair or replacement of a product or part of a product or the re- engineering or other re-doing of work in respect of a service, the US Vendor's and Canadian Vendor's obligation with respect to such indemnity shall be limited to the Relevant Purchaser's fully absorbed manufacturing cost of such repair plus 5%; and 12.4.2 where the US Vendor and the US Purchaser are unable to reach agreement on the extent to which the claim is justified and how it is to be dealt with within 21 days of either party receiving notice of the claim (both parties acting reasonably and negotiating in good faith), the Purchasers shall be entitled to take such action with respect to the claim as they believe is appropriate, provided, however, in dealing with the claim each Purchaser shall use its commercially reasonable efforts to minimize the costs. 12.5 VENDORS RECEIVE CLAIM FOR POST-CLOSING PRODUCT OR SERVICE If a claim in respect of a defective product manufactured and sold or defective service supplied after Closing is made against a Vendor, it shall inform the Purchasers promptly and the Purchasers shall be solely responsible for such claim, and the Purchasers shall indemnify and hold harmless the Vendors against all Losses which arise in connection with such claim. 12.6 CLAIM MADE FOR PRODUCT OR SERVICE SPANNING CLOSING If a claim is made against the Vendors or Purchasers after Closing in respect of a defective product partly manufactured or defective service partly supplied in the period both before and after Closing, unless the defect can be clearly established as being wholly attributable to acts or omissions either before or after Closing (in which case either Section 12.3, Section 12.4 or 12.5 (as the case may be) above shall apply), the costs to satisfy the claim shall be shared equally between the Relevant Vendor and the Relevant Purchaser. 12.7 INDEMNITIES REDUCED BY RECOVERY FROM THIRD PARTIES 43 47 Indemnities applicable under this Section 12 shall be reduced to the extent a Vendor or a Purchaser is able to recover any costs incurred either from insurance or from a third party, and each of the Vendors and the Purchasers undertake to use all commercially reasonable efforts to review the possibility of all such recoveries and act accordingly, keeping the other fully informed of its actions, and (in the case of legal proceedings) consulting with the other at each stage of the proceedings. 13 THIRD PARTY CONSENTS 13.1 FAILURE TO ASSIGN If the Vendors cannot assign to the Relevant Purchaser at Closing any of the Contracts which are being transferred to Relevant Purchaser pursuant to this Agreement because a required Third Party Consent has not been obtained, then such Contracts shall not be assigned by the Vendors at Closing, but: 13.1.1 shall be held in trust for or for the benefit of the Relevant Purchaser from Closing until such Third Party Consent is obtained, at which time the Relevant Vendor shall assign such Contracts to the Relevant Purchaser. Pending such assignment the Relevant Purchaser shall perform (as agent or sub-contractor of the Relevant Vendor) all the obligations of the Relevant Vendor thereunder and the Relevant Vendor shall otherwise cooperate in any reasonable arrangements proposed by the Relevant Purchaser designed to obtain for the Relevant Purchaser the benefits of the Contract which is being held in trust for or for the benefit of the Relevant Purchaser. If such Contract prohibits the Relevant Purchaser from acting as an agent or sub-contractor of the Relevant Vendor, then, if requested by the Relevant Purchaser, the Relevant Vendor shall do (or cause to be done) all such acts as may be required for the performance of such Contract so as to provide the Relevant Purchaser with the benefits, subject to the burdens on the basis provided in this Agreement, of such Contract; 13.1.2 the Relevant Vendor shall, at the request of the Relevant Purchaser and at the cost of the US Vendor, make or assist the Relevant Purchaser in making application for and obtaining any such Third Party Consent, such that the Third Party Consent is effective from Closing. The Relevant Purchaser shall supply to the Relevant Vendor such information and references regarding the financial position of the Relevant Purchaser as may reasonably be requested by the Relevant Vendor and shall enter into such direct covenants in favour of any relevant third party as 44 48 may reasonably be requested in respect of any rents, royalties, fees or other outgoings or liabilities for which the Relevant Purchaser will subsequent to Closing become liable. If required by any third party, the Relevant Purchaser shall give such reasonable additional covenants requested by any third party as a condition to receiving such Third Party Consent and shall generally use all reasonable endeavours to secure such consent; and 13.1.3 for such time as any Contracts are being held in trust for or for the benefit of the Relevant Purchaser, the Relevant Vendor will (so far as it lawfully may) give all reasonable assistance to the Relevant Purchaser to enable the Relevant Purchaser to enforce its rights under such Contracts. 13.2 INDIANA LEASE The Lease for the Indianapolis polymer plant (the INDIANAPOLIS LEASE) shall not be assigned to the Purchasers at Closing, but shall nevertheless be held in trust for the benefit of the US Purchaser and the US Purchaser shall be entitled to all of the benefits of the Indianapolis Lease from and after the Closing. In connection therewith, the US Purchaser shall be permitted to occupy the facility and operate the plant which is the subject of the Indianapolis Lease. The US Purchaser shall comply with all of the obligations of the lessee under the Indianapolis Lease except for the rental obligations under Section 3 thereof. The parties have agreed that the US Vendor will pay to the Landlord all rental payments due under Section 3 of the Indianapolis Lease through and until December 26, 2005. The US Purchaser will pay to the US Vendor the amount of $336,700 per annum, payable in two equal installments on each December 15 and June 15 occurring during the period from the date hereof until December 26, 2005, and the US Purchaser shall perform all of the other obligations of the US Vendor under the Indianapolis Lease from and after the Closing; provided, however, that the US Vendor agrees to take such action as may be reasonably requested by the US Purchaser on its behalf to maintain, preserve, protect, exercise or the like, any and/or all of the tenant's rights under the Indianapolis Lease. In the event the US Purchaser fails to make the payment it is required to make as described above after the expiration of 10 days after receipt of notice from US Vendor, in addition to any other remedies which may be available under law or hereunder, the US Vendor may elect to terminate US Purchaser's right to occupy the facility and recover possession thereof as if this Agreement constituted a sublease of such premises to US Purchaser. The US Purchaser shall operate and maintain the facility pursuant to Section 8 of the 45 49 Indianapolis Lease, shall maintain insurance pursuant to Section 10 of the Indianapolis Lease, and shall have the right to require the US Vendor to exercise the lessee's rights under the Indianapolis Lease, including, without limitation, those rights specified in: Section 11 (Rights to Assign or Sublease); Section 12 (Lease Renewal; Purchase Options); Section 13 (Notices for Renewal and Purchase; Determination of Fair Market Value); and Section 14 (Obsolescence Termination); PROVIDED, HOWEVER, that (1) US Purchaser shall have no right to assign its rights hereunder with respect to the Indianapolis Lease or to sublease the premises leased thereby without the prior written consent of US Vendor, such consent not to be unreasonably withheld, delayed or conditioned and US Purchaser shall have no right to require that US Vendor exercise the lessee's rights specified in Section 11 of the Indianapolis Lease UNLESS in either instance (i) US Purchaser shall indemnify and hold US Vendor harmless from and against any and all liability which may arise as a result of such assignment or sublease or the exercise of such rights, as the case may be, and (ii) the form of the indemnity agreement and the financial condition of the indemnitor shall be reasonably satisfactory to US Vendor; (2) in connection with any renewal or extension of the term of the Indianapolis Lease, US Vendor shall be released by the landlord from all prospective liability and obligations thereunder accruing from and after December 26, 2005, (3) in connection with the exercise of any purchase option, either (a) US Vendor shall be released by the landlord under the Indianapolis Lease from all liability and obligations in connection with the purchase of the Real Property underlying the Indianapolis Lease or (b) US Purchaser shall indemnify and hold US Vendor harmless from and against any and all Liability which may arise as a result of the exercise of such purchase option and shall assume all obligations which relate to the purchase of such Real Property. The US Vendor agrees that it will neither amend nor consent to any amendment to the Indianapolis Lease without the prior written consent of the US Purchaser, which consent may be withheld in the US Purchaser's sole and absolute discretion. The US Vendor and its Affiliates will have no further obligation to perform under the Indianapolis Lease after December 26, 2005. The US Purchaser and the Purchasers' Guarantor hereby indemnify and hold harmless the Vendors' Indemnified Group from and against all Losses that they may incur under or with respect to the Indianapolis Lease from and after the Closing Date other than the payment obligations set forth above, or any other default by the US Vendor pursuant to the terms and provisions of this Section. The US Vendor and the Vendors' Guarantor hereby indemnify and hold harmless the Purchasers' Indemnified Group from and against all Losses that they may incur under or with respect to the Indianapolis Lease from and after the Closing Date with respect to the US Vendor's failure to perform its obligations under this Section, or with respect to any lawsuit, action or cause of action brought by the "Owner Trustee" under the Indianapolis Lease for a default with respect to the payment obligations set forth above, or the performance of any obligation required of the US Vendor thereunder. 46 50 14 EMPLOYEES The terms and conditions set forth in Schedules 11, 11A, 11B and 11C are hereby incorporated into this Agreement by reference. 15 EMPLOYEE BENEFIT ARRANGEMENTS The terms and conditions set forth in Schedule 12 are hereby incorporated into this Agreement by reference. 16 ENVIRONMENTAL The terms and conditions set forth in Schedule 16 are hereby incorporated into this Agreement by reference. 17 POST-CLOSING OBLIGATIONS 17.1 THE ASSUMED LIABILITIES 17.1.1 If the Vendors become aware after Closing of any claim which constitutes or may constitute an Assumed Liability, the Vendors shall as soon as reasonably practicable give written notice thereof to the Purchasers and shall not admit, compromise, settle, discharge or otherwise deal with such claim without prior consultation with and the prior agreement of the Purchasers. 17.1.2 The Vendors shall, at the Purchasers' expense, take such action as the Purchasers may reasonably request to avoid, dispute, resist, appeal, compromise, defend or mitigate any claim which constitutes an Assumed Liability, in each case subject to the Vendors being indemnified and secured to their reasonable satisfaction by the Purchasers against all Losses which may thereby be incurred. In connection therewith, the Vendors shall make or cause to be made available to the Purchasers or their duly authorized agents, at the Purchasers' cost, on reasonable notice during normal business hours, all relevant accounting books and records, and correspondence relating to the Operations which have been retained by the Vendor (and shall permit the Purchasers to make copies thereof) for the purposes of enabling the Purchasers to ascertain or extract any information relevant to the claim. 47 51 17.2 BONDS AND GUARANTEES 17.2.1 The Purchasers shall use their best efforts with the Vendors' assistance to cause, effective from the Closing Date, the release of the Vendors or any person included in the Vendor Group from any bonds or guarantees issued by banks or other financial service providers on behalf of any of them in respect of the Operations (relating to non-completed contracts) as shown in Schedule 18 (for the period up to and including December 31, 1998, and after December 31, 1998 to Closing for such bonds or guarantees entered into in the ordinary course of the Operations) or in any event as soon as practicable after Closing. 17.2.2 After Closing but prior to such release the Purchasers will indemnify and hold harmless the Vendors (for themselves and as trustee for each member of the Vendors' Group) from and against any Losses arising after Closing in respect of any such bonds or guarantees (including drawings thereunder) to the extent resulting from actions of the Purchasers or any member of the Purchasers' Group relating to any such bonds or guarantees referred to in Section 17.2.1 or their respective underlying contracts or tenders. 17.2.3 After Closing if any of the bonds or guarantees referred to in Section 17.2.1 are drawn upon, then the Vendors will indemnify and hold harmless the Purchasers for any Losses in respect of any such bonds or guarantees (including drawings thereunder) to the extent resulting from the actions of any Vendor (as the case may be) before Closing as agreed to by the Vendors and Purchasers. 17.3 VENDORS' GENERAL OBLIGATIONS If at any time after Closing, any Vendor or any person included in the Vendors' Group receives any monies (other than insurance proceeds) in respect of any claim included in the Acquired Assets or in respect of any Accounts Receivable, then the appropriate Vendor or appropriate person included in the Vendors' Group shall pay to the Purchasers as soon as reasonably practicable after receipt of such monies, the amount received. 17.4 VENDORS' CONTINUING OBLIGATION 48 52 Notwithstanding Closing, the Vendors shall execute such documents and take such actions as the Purchasers may reasonably require for the purpose of giving to the Relevant Purchaser the full benefit of all the provisions of this Agreement. 17.5 CHANGE OF NAME 17.5.1 The Purchasers shall, subject to Section 17.5, have the right to continue to use the trade marks and trade names that are Excluded Assets on a royalty free, non-exclusive basis for a period of 12 months from the Closing Date but solely on the products on and in the manner in which they were being used immediately before Closing; provided that commencing 30 days from Closing the US Purchaser shall, or shall cause that the Relevant Purchaser shall, use its reasonable efforts to make clear on all publicity material (excluding factory signs), bank checks, letterheads and invoices that the US Business and the Canadian Business are part of the Purchasers' Group. 17.5.2 The Purchasers shall be entitled to use and have the right to sublicense to any member of the Purchasers' Group (but only for so long as such person remains a subsidiary (direct or indirect) of the Purchasers' Guarantor) the name "BICC" only in conjunction with the name "General Cable" as the name of any corporate entity, partnership, or other vehicle which, in all cases, is primarily involved in the manufacture, sale or distribution of energy cables. 17.5.3 The Purchasers shall be entitled to use and have the right to sublicense to any member of the Purchasers' Group (but only for so long as such person remains a subsidiary (direct or indirect) of the Purchasers' Guarantor) the name "Brand Rex" only preceded by the name "General Cable" as the name of any corporate entity, partnership or other vehicle which, in all cases, is solely involved in the manufacture, sale or distribution of Specialty Cables in the US, Canada or Mexico. 17.5.4 The Purchasers shall not be entitled to register, use or otherwise employ the name "Brand Rex" on any Data Cable product wherever manufactured or sold. The Purchasers acknowledge that the Vendors shall be entitled to use the name "Brand Rex" on any Data Cable product world-wide and on any Specialty Cables (other than sales to customers located in the US, Canada or Mexico). 49 53 17.5.5 The Vendors shall not be entitled to register, use or otherwise employ the name "Brand Rex" on any cable sold to specialty cable manufacturers located in the US, Canada or Mexico. 17.5.6 For the purpose of this Section 17.5: "Specialty Cables" means cables sold or for use in airplanes, ships, locomotives, trucks, or other forms of vehicular transport (or otherwise currently manufactured in the US by the Brand Rex division of BICC Cables Corporation) other than Data Cables. "Data Cables" means cables primarily intended for the transmission of data in local or wide area networks, examples being category 5, 6 and 7 data cables. 17.6 The Vendor hereby grants, and shall cause each member of the Vendor's Group to grant, to each of the Relevant Purchasers with effect from Closing a royalty-free, irrevocable, perpetual license to use the Intangible Property and Know-How that are Excluded Assets and that are required for the Operations (as conducted at Closing) to be used for the purposes of the Operations, as each of the Operations develop from time to time, with a right to sublicense such Intangible Property and Know-How to other members of the Purchaser's Group. 17.7 INVESTMENT CANADA ACT 17.7.1 The Canadian Purchaser shall, within thirty days after Closing, give notification of the purchase of the Canadian Assets by the Canadian Purchaser as required by the Investment Canada Act. 50 54 18 GUARANTEES 18.1 VENDORS' GUARANTEED OBLIGATIONS In consideration of the Purchasers' Guarantor entering into the guarantee in Section 18.3, the Vendors' Guarantor hereby unconditionally and irrevocably guarantees to each of the Purchasers the due and punctual performance and observance by the Vendors or any of their assignees pursuant to Section 19.5.1 or 19.5.2 of all their obligations, commitments, undertakings, warranties and indemnities under or pursuant to this Agreement or the Tax Deed of Covenant (the VENDORS' GUARANTEED OBLIGATIONS). 18.2 GUARANTY If and whenever any of the Vendors defaults for any reason whatsoever in the performance of any of the Vendors' Guaranteed Obligations, the Vendors' Guarantor shall forthwith upon written demand served in accordance with this Agreement unconditionally perform (or cause the performance of) and satisfy (or cause the satisfaction of) the Vendors' Guaranteed Obligations in regard to which such default has been made in the manner prescribed by this Agreement and so that the same benefits shall be conferred on the US Purchaser or the Relevant Purchaser (as the case may be) as it would have received if the Vendors' Guaranteed Obligations had been duly performed and satisfied by the Relevant Vendor. 18.3 PURCHASER'S GUARANTEED OBLIGATIONS In consideration of the Vendors entering into this Agreement, the Purchasers' Guarantor hereby unconditionally and irrevocably guarantees to the Vendors the due and punctual performance and observance by the US Purchaser, the Canadian Purchaser, any Relevant Purchaser or any of their assignees pursuant to Section 19.5.1 or 19.5.2 of all their obligations, commitments, undertakings, warranties and indemnities under or pursuant to this Agreement (the PURCHASER'S GUARANTEED OBLIGATIONS). 18.4 GUARANTY If and whenever any of the Relevant Purchasers defaults for any reason whatsoever in the performance of any of the Purchaser's Guaranteed Obligations, the Purchasers' Guarantor 51 55 shall forthwith upon written demand served in accordance with this Agreement unconditionally perform (or cause performance of) and satisfy (or cause the satisfaction of) the Purchaser's Guaranteed Obligations in regard to which such default has been made in the manner prescribed by this Agreement and so that the same benefits shall be conferred on the Vendors as it would have received if the Purchaser's Guaranteed Obligations had been duly performed and satisfied by the Relevant Purchaser. 19 OTHER PROVISIONS 19.1 ANNOUNCEMENTS 19.1.1 Pending Closing, the Vendors and the Purchasers shall, subject to the requirements of Law or any regulatory body or the rules and regulations of any recognized stock exchange, consult together prior to issuing any formal announcement, press release, circular, or notice to shareholders, employees, customers, suppliers, distributors and sub-contractors and to any recognized stock exchange or other authorities or to the media or otherwise which either party may desire or be required to make regarding this Agreement or any of the transactions contemplated hereby or thereby. 19.1.2 No party shall, pending Closing, make or authorize or issue any formal announcement, circular or other communication concerning this Agreement or any of the transactions contemplated hereby or thereby unless (a) the other party shall have approved such disclosure or (b) such disclosure is required by applicable Law or the rules and regulations of an applicable stock exchange. 19.1.3 If Closing does not take place, the Purchasers shall forthwith promptly return all accounts, records, documents and papers of or relating to the Vendors or the Operations which shall have been made available to them and all copies, abstracts or other records derived from such materials and expunge any information derived from such materials or otherwise concerning the subject matter of this Agreement from any computer, wordprocessor or other device containing information, provided that this shall not apply to information available from public records or information acquired by a Relevant Purchaser otherwise than from the Vendors or their agents. 19.2 CONFIDENTIAL INFORMATION 52 56 19.2.1 The Vendors: (a) shall not, and shall cause all other members of the Vendors' Group, and each of their respective directors, officers or employees or advisors or agents or representatives not to, disclose to any person Confidential Information; and (b) shall use reasonable efforts to prevent the disclosure of Confidential Information by any person other than by members of the Purchasers' Group; and (c) in the event either Vendor is requested or required (by oral question or request for information or documents in any legal proceeding, interrogatory, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, the Vendors will notify the Purchasers promptly of the request or requirement so that the Purchasers may seek an appropriate protective order or waive compliance with the provisions of this Section 19.2.1(c). If, in the absence of a protective order or the receipt of a waiver under this Section 19.2.1(c), the Vendors are, on the advice of counsel, compelled to disclose any Confidential Information to any tribunal, the Vendors may disclose the Confidential Information to the tribunal. However, the Vendors shall cooperate with the Purchasers in obtaining, at the reasonable request and expense of the Purchasers, an order or other assurance that confidential treatment will be accorded to such portion of the Confidential Information required to be disclosed as the Purchasers shall designate. 19.2.2 The Purchasers: (a) shall not, and shall cause all other members of the Purchasers' Group and each of their respective directors, officers or employees or advisors or agents not to disclose to any person Confidential Information; and (b) shall use reasonable efforts to prevent the disclosure of Confidential Information by any person other than by members of the Vendors' Group. 53 57 19.3 PERMITTED DISCLOSURE, ETC. 19.3.1 Section 19.2.1 does not apply to: (a) disclosure of Confidential Information to or at the written request of a Relevant Purchaser; (b) disclosure of Confidential Information required to be disclosed by Law, regulation, any revenue authority or any stock exchange; (c) disclosure of Confidential Information to professional advisors for the purpose of advising a Vendor; provided that such advisors shall be made aware of the confidential nature of such information; (d) disclosure of Confidential Information for the purposes of defending any claim under the Warranties (including making any claims or counterclaims against third parties pursuant to Section 8.3.2); or (e) Confidential Information which is in the public domain other than by the Vendors' breach of Section 19.2.1. 19.3.2 Section 19.2.2 does not apply to: (a) disclosure of Confidential Information to or at the written request of a Relevant Vendor; (b) disclosure of Confidential Information required to be disclosed by Law, regulation, any revenue authority or any stock exchange; (c) disclosure of Confidential Information to professional advisors for the purpose of advising a Relevant Purchaser provided that such advisors shall be made aware of the confidential nature of such information; or (d) Confidential Information which is in the public domain other than by the Purchaser's breach of Section 19.2.2. 54 58 19.3.3 For the purpose of this Agreement, CONFIDENTIAL INFORMATION means, (i) for the purposes of Section 19.2.1 all information relating to the Vendors' business, including but not limited to know-how, trade secrets, customer and supplier lists, marketing plans and strategies, designs, pricing and cost information, drawings, technical information and other proprietary information relating to the Operations or financial or other affairs (including future plans and targets) of the Vendors and which is not in the public domain; and (ii) for the purposes of Section 19.3, all information relating to the business, financial or other affairs (including future plans and targets) of any company in the Vendors' Group, other than in respect of the Operations, and which is not in the public domain. 19.4 INTEGRATION This Agreement, together with the Schedules hereto, the Disclosure Letter, and the Tax Deed of Covenant constitute the entire agreement among the parties relating to the subject matter of this Agreement and supercede all prior oral and written presentations, understandings, agreements, representations, warranties or other information by or among the parties (or any of their respective Affiliates, directors, officers, trustees, employees, agents, accountants, attorneys or other advisors or representatives) with respect to the subject matter hereof, and no such prior or subsequent oral understanding, agreement, representation or warranty shall be or be deemed to be a part of this Agreement, the Schedules hereto, the Disclosure Letter or the Tax Deed of Covenant except in accordance with Section 19.6. 19.5 SUCCESSORS AND ASSIGNS; NO THIRD-PARTY BENEFICIARIES 19.5.1 Any of the Vendors or Purchasers may, except as otherwise expressly provided in this Agreement and without the consent of the other, assign to a wholly owned Subsidiary of such party the benefit of all or any part of any other party's obligations under this Agreement; provided, however, that such assignment shall not be absolute but shall be expressed to have effect only for so long as the assignee remains a wholly owned Subsidiary. 19.5.2 This Agreement is, subject to Section 19.5.1, personal to the parties to it. Accordingly, no party may, without the prior written consent of the Purchasers and the Vendors' Guarantor, assign either this agreement or any of its rights, interests or obligations under this Agreement; provided, however, the US Purchaser and Canadian Purchaser and the Purchasers' Guarantor may assign all of their rights hereunder and delegate all of their obligations hereunder to 55 59 any person to whom the US Purchaser or Canadian Purchaser sells a substantial part of the assets of the US Business or Canadian Business and the Vendors and the Vendors' Guarantor may assign all of their rights and delegate all of their obligations hereunder to any person to whom the Vendors or the Vendors' Guarantor sell a substantial part of their respective assets. This Agreement shall bind, benefit, and be enforceable by and against each party hereto and its successors and permitted assigns. 19.5.3 Unless specifically stated herein, this Agreement shall not confer any rights or remedies upon any person other than the parties hereto and their respective successors and permitted assigns. 19.6 AMENDMENTS AND WAIVERS No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by each of the parties hereto. No waiver by any party of any default, misrepresentation, or breach of warranty or covenant under this Agreement, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant under this Agreement or affect such occurrence. 19.7 REMEDIES So far as is permitted by law and except in the case of fraud, the parties agree and acknowledge that the only remedies available to the Purchasers in connection with or arising out of this Agreement are set forth in Section 2.3 of this Agreement. 19.8 THIRD PARTY COSTS Except as set forth in Schedule 10, the Vendors shall bear all legal, accounting and other third party costs and expenses incurred by them in connection with this Agreement, and the Tax Deed of Covenant and the sale of the Operations. The Purchaser shall bear all such costs and expenses incurred by it and any other Relevant Purchaser. 19.9 COSTS TO ASSIGN CONTRACTS The Vendors and Purchasers agree to co-operate and to use all reasonable commercial efforts prior to and subsequent to Closing to ensure that all Contracts included in the 56 60 Acquired Assets are lawfully assigned to the Purchasers with effect from the Closing or as soon as practicable thereafter or that the Purchaser otherwise receives the benefits of such Contracts. If there are any reasonable costs or expenses associated with assigning or otherwise transferring such Contracts (including any rent, royalties, costs of obtaining estoppels or other fees or payments made or required to be made in connection with the assignment or transfer of any such Contracts) such reasonable cost or expenses shall be paid by the Vendors; provided that, except as provided in Section 2.3.2(e), the Vendors shall not be responsible for any Losses resulting from the failure of Purchaser to obtain the benefits of any Contract to be assigned or transferred. Each Purchaser shall take all commercially reasonable actions to eliminate or reduce any costs or expenses that may be payable by a Vendor hereunder; provided that (x) all reasonable costs and expenses (including overhead and administrative costs and expenses) of the Purchasers resulting from such actions shall be reimbursed by the Vendors and (y) no Purchaser shall be required to take any action under this Section 19.9 which is outside of the ordinary course of the Operations. 19.10 INTEREST If any Vendor or any Relevant Purchaser defaults in the payment when due of any sum payable under this Agreement or the Tax Deed of Covenant (whether determined by agreement or pursuant to an order of a court or otherwise) their Liability 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 2 per cent above the base rate for US dollar loans in New York from time to time of The Hong Kong and Shanghai Banking Corporation Limited. Such interest shall accrue from day to day. 19.11 SET-OFF Under no circumstances shall any amounts (if any) payable by any Relevant Purchaser to any Vendor or by any Vendor to any Relevant Purchaser pursuant to this Agreement be set off against each other or against any amounts otherwise owing to any such party. 19.12 LONG STOP LIMITATION OF LIABILITY Notwithstanding any other provision in this Agreement or any provision in the Tax Deed of Covenant, under no circumstances shall any Vendor or any other member of the Vendors' 57 61 Group have any liability whatsoever pursuant to this Agreement, or the Tax Deed of Covenant following the twentieth anniversary of the date of this Agreement. 19.13 EXCLUSIVITY The Vendors and the Vendors' Guarantor will not (and the Vendors will not cause or permit any of their Affiliates to) solicit, initiate or encourage the submission of any proposal or offer from any Person relating to any (A) liquidation, dissolution or recapitalization, (B) merger or consolidation, (C) acquisition or purchase of a substantial portion of the Acquired Assets, or (D) similar transaction or business combination involving the Operations. 19.14 NOTICES 19.14.1 Any notice, consent or other communication required or permitted to be given under this Agreement shall be in writing and shall be sufficiently given or served if delivered or sent: In the case of any of the Vendors and the Vendors' Guarantor to such party care of: BICC plc Devonshire House Mayfair Place London W1X 5FH T: 011-44-171-409-8000 F: 011-44-171-409-0070 Attention: The Company Secretary of BICC plc. and BICC Cables Corporation One Crosfield Avenue West Nyack, New York 10994 Attention: President T: 914-348-1400 F: 914-348-9833 58 62 with copies to Mayer, Brown, & Platt 1675 Broadway New York, New York 10019 Attention: Mark S. Wojciechowski T: 212-506-2525 F: 212-262-1910 and, in the case of any claim relating to environmental matters, additional copies to DL Rothberg & Associates 230 Park Avenue Suite 615 New York, New York 10169 Attention: Debra Rothberg T: 212-490-2220 F: 212-490-2336 In the case of any of the Relevant Purchasers or the Purchasers' Guarantor to such party care of: General Cable Corporation 4 Tesseneer Drive Highland Heights, KY 41076 Fax: 606-572-8444 Attention: Robert J. Siverd General Counsel with a copy to Blank Rome Cominsky & McCauley LLP One Logan Square Philadelphia, PA 19103-6994 Fax: 215-569-5628 Attention: Sol Genauer 59 63 19.14.2 Any such notice or other communication shall be delivered by hand or sent by fax or registered or certified mail, return receipt requested, or overnight courier. If sent by fax such notice or communication shall conclusively be deemed to have been given on the date transmitted if confirmed within 24 hours thereafter by a signed original sent in one of the other manners provided in this Section 19.14.2. If sent by registered or certified mail, return receipt requested such notice or communication shall conclusively be deemed to have been received three Business Days from the time of mailing in the case of domestic mail in the United States, or five Business Days from the time of mailing in the case of international mail. If sent by overnight courier, such notice or communication shall conclusively be deemed to have been received one Business Day from deposit for overnight delivery service. Any party may change its address or fax number for notice purposes by giving notice of the new address or fax number in accordance with this Section 19.14, provided that any such change of address shall not be effective unless and until received. 19.15 SEVERANCE If any term or provision of this Agreement is held to be illegal or unenforceable, in whole or in part, under any enactment or rule of Law, such term or provision or part shall to that extent be deemed not to form part of this Agreement but the enforceability of the remainder of this Agreement shall not be affected. 19.16 REFERENCES TO THE REPORTING ACCOUNTANTS Whenever any matter is referred under this Agreement (other than Section 9) to the Reporting Accountants for determination, the provisions of Section 9 which apply to the Reporting Accountants' determination of the Net Asset Statement shall apply to their determination of any such matter. 19.17 GENERAL SERVICES AND SUPPLY AGREEMENT The Vendors and the Purchasers hereby agree that they will use their reasonable efforts to negotiate in good faith by Closing or as soon as practicable thereafter the terms and conditions of any required General Services and Supply Agreement. 19.18 COUNTERPARTS 60 64 This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all the counterparts shall together constitute one and the same instrument. 19.19 GOVERNING LAW AND SUBMISSION TO JURISDICTION 19.19.1 This Agreement and the Tax Deed Of Covenant shall be construed, and the rights and obligations of the parties hereunder determined, in accordance with and governed by the internal laws of the State of New York (as permitted by Section 5-1401 of the New York General Obligations Law (or any similar successor provision)) without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New York to the rights and duties of the parties; provided, however, that in the event a claim for an Environmental Loss is made pursuant to Schedule 16 hereof, the substantive Environmental Laws of the jurisdiction or jurisdictions where the Real Property in question is located, or where the Environmental Liability has otherwise arisen, shall apply. 19.19.2 For the purposes of any suit, action or proceeding involving this Agreement and the Tax Deed of Covenant or any other documents to be entered into pursuant to them, each of the Vendors, the Vendors' Guarantor, the Purchasers and the Purchasers' Guarantor hereby expressly submits to the jurisdiction of all federal and state courts sitting in the State of New York and agrees that any order, process, notice of motion or other application to or by any such court or a judge thereof may be served within or without such court's jurisdiction by registered mail or by service in hand, provided that a reasonable time for appearance is allowed, and each party agrees that such courts shall have exclusive jurisdiction over any such suit, action or proceeding commenced by either or both of said parties. Each of the Vendors, the Vendors' Guarantor, the Purchasers and the Purchasers' Guarantor hereby irrevocably waives any objection that it may have now or hereafter to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement and the Tax Deed of Covenant or any other documents to be entered into pursuant to them, brought in any federal or state court sitting in the State of New York and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. 19.19.3 THE PARTIES HERETO IRREVOCABLY WAIVE THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT 61 65 AND THE TAX DEED OF COVENANT OR ANY OTHER DOCUMENTS TO BE ENTERED INTO PURSUANT TO THEM OR THE ENFORCEMENT OF ANY PROVISIONS HEREOF OR THEREOF. 19.20 SETTLEMENT ATTEMPT The parties agree that, except as provided in Section 19.23, any claim or dispute between them arising out of or in connection with this Agreement or any alleged breach of this Agreement shall be submitted promptly to a senior executive of the US Vendor or the Vendors' Guarantor and a senior executive of the US Purchaser who shall have authority to settle the claim, and who shall meet in New York, New York, within 30 days of such submission to seek in good faith an amicable settlement. In seeking an amicable settlement, the parties may consult with a neutral third party mediator if both agree in writing. Unless the parties agree to the contrary in writing, any advice or decision of the mediator shall not be binding. Subject to Section 19.23, any Claim which is not settled by the parties within sixty (60) days of notice thereof first being given by either party to the other may be pursued by a party in any court in accordance with Section 19.19. 19.21 APPOINTMENT OF PROCESS AGENTS 19.21.1 The Vendors' Guarantor irrevocably appoints CT Corporation as its agent for the service of process in New York in relation to any matter arising out of this Agreement, and the Tax Deed of Covenant service upon whom shall be deemed completed whether or not forwarded to or received by the Vendors' Guarantor. 19.21.2 The Vendors' Guarantor shall inform the Purchasers, in writing, of any change in the address of its process agent within 28 days of such change. 19.21.3 If such process agent ceases to have an address in New York, the Vendors' Guarantor irrevocably agrees to appoint a new process agent acceptable to the Purchasers and to deliver to the Purchasers within 14 days a copy of a written acceptance of appointment by its new process agent. 19.21.4 Nothing contained in this Agreement shall affect the right to serve process in any other manner permitted by law or the right to bring proceedings in any other jurisdiction for the purposes of the enforcement or execution of any Judgment or other settlement in any other courts. 62 66 19.22 CURRENCY 19.22.1 With respect to any sum due hereunder, or under the Tax Deed of Covenant or under any other document to be entered into pursuant hereto or thereto which is denominated in a currency other than British pounds sterling, if it is necessary to convert such sum into British pounds sterling, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which, in accordance with normal banking procedures, the applicable party could purchase British pounds sterling, with such sum denominated in such other currency, at the Hong Kong and Shanghai Banking Corporation Limited in London, England, at the close of business on the Business Day immediately preceding the day on which the conversion is to be made, without regard to any premiums and costs of exchange payable in connection with such purchase. 19.22.2 With respect of any sum due from any party to any other party hereunder, or under the Tax Deed of Covenant or under any other document to be entered into pursuant hereto or thereto which is denominated in British pounds sterling, the obligation of the party which owes such sum shall, notwithstanding any Judgment in a currency other than British pounds sterling, only be discharged to the extent that on the Business Day next succeeding receipt by such other party of any sum adjudged to be so due in such other currency, such party may, in accordance with normal banking procedures, purchase British pounds sterling with such other currency at the Hong Kong and Shanghai Banking Corporation Limited in London, England or its successor. If the British pounds sterling so purchased are less than the sum originally due to such party in British pounds sterling, each of the parties against whom such Judgment is rendered agrees, as a separate obligation and notwithstanding any such Judgment, to indemnify the parties to whom such Judgment is granted against such loss. 19.22.3 If it is necessary to convert an amount (the ORIGINAL AMOUNT) due hereunder, under the Tax Deed of Covenant or any other document to be entered into pursuant hereto or thereto expressed in either Canadian Dollars or U.S. Dollars (the ORIGINAL CURRENCY), the amount expressed in the other currency shall be the sum which would be required to buy the Original Amount of the Original Currency using the noon spot rate exchange for New York City interbank transactions applied in converting the other currency into the Original Currency published by The Wall Street Journal (Eastern Edition) for such date. 19.23 CERTAIN RESTRICTIVE COVENANTS 63 67 19.23.1 The covenants set forth in this Section 19.23 (the RESTRICTIVE COVENANTS) are a material part of this Agreement and are an integral part of the obligations of the Vendors hereunder, such Restrictive Covenants are supported by good and adequate consideration, and such Restrictive Covenants are reasonable and necessary to protect the legitimate business interests of the Purchasers. 19.23.2 During the period beginning on the Closing Date and ending on the third anniversary of the Closing Date, except with the Purchasers' prior written consent, the Vendors shall not, directly or indirectly, in any capacity, in the United States or Canada: (a) carry on or otherwise engage or have an interest in any capacity (whether for profit or otherwise) in, any business which competes with any of the Operations as operated on the Closing Date anywhere in the world where the Operations are conducted on the Closing Date; (b) in relation to the Operations, solicit, seek to obtain or accept orders from or otherwise do business with or solicit directly or indirectly any other person to obtain orders from or do business with any person or firm who or which (i) was a customer, supplier or agent of the Vendors in relation to the Operations at any time during the two years prior to Closing, or (ii) at the date of Closing was negotiating to do business with the Vendors in relation to the Operations, or otherwise interfere or seek to interfere with the supply of goods or services to or by the Operations, provided that this Section 19.23.2 shall not prohibit the Vendors from doing business with any person who is or was a customer, supplier or agent of the Vendors prior to Closing in relation to any business of the members of the Vendors' Group which is not being transferred under this Agreement; or (c) solicit, with a view to employment, directly or indirectly, any Senior Employee who is a Continuing Employee (PROHIBITED EMPLOYEES) (provided that nothing in this Section 19.23.2(c) shall prevent any member of the Vendors' Group from making generalized employment searches, by advertisement or by engaging firms to conduct searches which are not focused on Prohibited Employees). 19.23.3 The restrictions in clause 19.23.2 shall not operate to prohibit: 64 68 (a) the Vendors from holding in aggregate up to 10% of the capital stock of any person if any class of capital stock of such person is listed on a national market quotation system or recognized stock exchange; or (b) the Vendors from carrying on any business not sold to the Purchasers pursuant to the terms of this Agreement, in particular the business presently carried on under the name "BICC Brand Rex" with manufacturing facilities outside the United States, Canada and Mexico to be renamed "Brand Rex." 19.23.4 Each of the Vendors expressly acknowledges that it would be extremely difficult to measure the damages that might result from any breach of the Restrictive Covenants, and that any breach of the Restrictive Covenants will result in irreparable injury to the Purchasers for which money damages could not adequately compensate. If a breach of the Restrictive Covenants occurs, then the Purchasers shall be entitled, in addition to all other rights and remedies that they may have at law or in equity, to have an injunction issued by a court of competent jurisdiction enjoining and restraining the Vendors and all other persons involved therein from continuing such breach. The existence of any claim or cause of action that either of the Vendors or any such other person may have against any member of the Purchasers' Group shall not constitute a defense or bar to the enforcement of any of the Restrictive Covenants. 19.23.5 If any Restrictive Covenant, or any part thereof, or the application thereof, is construed to be invalid, illegal or unenforceable, then each other Restrictive Covenant, or the other portions of any such Restrictive Covenant, or the application thereof, shall be affected thereby and shall be enforceable without regard thereto. If any of the Restrictive Covenants is determined to be unenforceable because of its scope, duration, geographical area or other factor, then the court making such determination shall have the power to reduce or limit such scope, duration, area or other factor, and such Restrictive Covenant shall then be enforceable in its reduced or limited form. 65 69 19.24 RELIANCE BY PURCHASERS; DISCLOSURE OF REPRESENTATION AND WARRANTIES Notwithstanding the right of Purchasers to investigate the business, Acquired Assets and financial condition of the Vendors and the Operations, and notwithstanding any knowledge obtained or obtainable by Purchasers as a result of such investigation (including pursuant to Section 7.3.1(ii) or 7.3.2), Purchasers have the unqualified right to rely upon, and have relied upon, each of the Warranties, and Purchasers' right to indemnification based on the Warranties will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) whether before or after the execution and delivery of this Agreement, with respect to the accuracy or inaccuracy of any such Warranty. 19.25 SECTION HEADINGS Section and subsection headings in this Agreement are for convenience of reference only, do not constitute a part of this Agreement, and shall not affect its interpretation. 19.26 REFERENCES All words used in this Agreement shall be construed to be of such number and gender as the context requires or permits. 19.27 COOPERATION The parties hereto agree to cooperate fully with each other and to execute and deliver such further documents, certificates, agreements and instruments and to take such other actions as may be reasonably requested to evidence or reflect the transactions contemplated by this Agreement and to carry out the intent and purposes of this Agreement. 19.28 BULK SALES Purchasers hereby waive compliance by the Vendors with Bulk Sales Laws with respect to the transactions contemplated hereby and in connection herewith. 66 70 IN WITNESS WHEREOF this Agreement has been duly executed as of the date first above written. BICC CABLES CORPORATION By /s/ H.P. Berndorff ------------------------------ Name: H.P. Berndorff ----------------------------- Title: Vice President ---------------------------- PYROTENAX USA INC. By /s/ H.P. Berndorff ------------------------------ Name: H.P. Berndorff ----------------------------- Title: Vice President ---------------------------- BICC CABLES CANADA INC. By /s/ H.P. Berndorff -------------------------------- Name: H.P. Berndorff ----------------------------- Title: Secretary - Treasurer ---------------------------- BICC PLC By /s/ Peter Zinkin -------------------------------- Name: Peter Zinkin ----------------------------- Title: Director ---------------------------- GK TECHNOLOGIES, INCORPORATED, in its capacity as US Purchaser and Canadian Purchaser By /s/ Robert J. Siverd -------------------------------- Name: Robert J. Siverd ----------------------------- Title: Executive Vice President ---------------------------- GENERAL CABLE CORPORATION By /s/ Robert J. Siverd -------------------------------- Name: Robert J. Siverd ----------------------------- Title: Executive Vice President ---------------------------- 67 71 SCHEDULE 1 OPERATIONS The Operations shall include, without limitation, the following operations: 1. VENDOR OWNED REAL PROPERTIES ---------------------------- 1 MARSHALL, TX SITE Design, manufacture and distribution of utility cables, Technology research and development 2 MALVERN, AK SITE Design, manufacture and distribution of utility cables 3 DUQUION, IL SITE Design, manufacture and distribution of utility cables 4 WILLIMANTIC, CT SITE Design, manufacture, marketing and distribution of cable and accessories. The site also includes executive offices and operations for the Brand-Rex product lines 5 SOUTH HADLEY, MA SITE Design and manufacture of bare cables 6 JACKSON, TN SITE Design, manufacture, distribution and assembly of Brand-Rex cable and accessories 7 MARION, IN SITE Design, manufacture and distribution of Brand-Rex cables and accessories 8 LA MALBAIE, QUEBEC SITE Design, manufacture and distribution of utility cables and aluminum strip 9 ST. JEROME, QUEBEC SITE Design, manufacture and distribution of utility cables 10 MOOSE JAW, SASKATCHEWAN SITE Design, manufacture and distribution of utility cables 11 TRENTON, ONTARIO SITE Design, manufacture, distribution and marketing of mineral insulated electrical cable and electronic controllers. The site is also used for research and development, includes customer service area, executive offices and operations management for BICC-Pyrotenex. 2. LEASED PROPERTIES ----------------- 12 INDIANAPOLIS, IN SITE Technology research and development center 68 72 13 INDIANAPOLIS, IN SITE Manufacture of Polymenic compounds for cable insulation 14 WEST NYACK, NY SITE Headquarters for the North American Business Headquarters for the utility cable business 15 CALGARY, ALBERTA SITE Sales offices for BICC Cables Canada Inc. 16 MONTREAL, QUEBEC SITE Sales offices for BICC Cables Canada Inc. 17 TORONTO, ONTARIO SITE Headquarters for BICC Cables Canada Inc. Sales offices for the certificate insurers and for BICC-Pyrotenex 18 EDMONTON, ALBERTA SITE Light assembly of mineral insulated cable units and electronic controllers 19 HOUSTON, TEXAS SITE Light assembly and distribution center for mineral insulated cables 20 SYRACUSE, NEW YORK SITE Sales and administrative office for BICC-Pyrotenex products manufactured in Canada and sold in the US. 69 73 SCHEDULE 2 [INTENTIONALLY LEFT BLANK] 70 74 SCHEDULE 3 ALLOCATION OF PURCHASE PRICE The Purchase Price shall be allocated between the US Business and the Canadian Business as follows:
(1) (2) (3) (4) NAME OF VENDOR JURISDICTION PARTICULARS OF ALLOCATION CANADIAN/US BUSINESS 3.1 US Vendor US Sale of assets (pound)96 million 3.2 Canadian Vendor Canada Sale of assets (pound)8.4 million
The allocation of the Purchase Price among each of the Acquired Assets shall be agreed between the Relevant Vendor and the Relevant Purchaser by reference to the Acquired Assets respective values, as provided in Section 3.1(b) of the Agreement. Adjustments to the Purchase Price (pursuant to Section 9 or otherwise) shall be allocated as determined by the US Purchaser on behalf of itself and the Canadian Purchaser in their reasonable discretion. 71 75 SCHEDULE 4 CERTAIN THIRD PARTY CONSENTS - - Agreement dated September 1997 between Ace and the Canadian Vendor concerning rights of first refusal. - - Agreement dated February 5, 1999 with Houston Wire & Cable. - - Nondisclosure Agreement with BrandRex and GEC (undated). - - Product Supply Agreement with Air Products dated January , 1994 for requirements. - - Supply Agreement dated July 1, 1994 with Bekaert for ACSR products. - - Agreement dated April 1, 1997 with BICC Cables for PUC products. - - All Sumitomo confidentially and development Agreements (undated). - - Customer Agreement between BICC Cables Corporation and IBM Corporation, effective from January 1, 1998 to December 31, 2000 - - All agreements (including license and service agreements) relating to software, hardware or systems which support the Operations, other than agreements relating to software which is generally commercially available. - - Unless otherwise repaid or defeased by the US Vendor, consent of the Trustee and Bondholders in connection with the $9 million Industrial Development Revenue Bond among the Industrial Development Board of the City of Jackson, Tennessee, BICC Cables Corporation, First America National Bank and Chemical Securities Inc. (relating to the Lease dated May 1, 1991) with respect to: (a) the assignment of the obligations under the bonds to the US Purchaser, and (b) the assignment of the obligations under the Guaranty from the Vendors' Guarantor to the Purchasers' Guarantor, and (c) the release of the US Vendor and the Vendors' Guarantor of any of their respective obligations thereunder. - - Consent of General Electric Capital Corporation to assignment to US Purchaser of Master Lease Agreement (as it may be extended or renewed) between General Electric Capital Corporation and BICC Cables Corporation, dated as of July 2, 1991, unless the parties otherwise agree prior to Closing that US Vendor will purchase the equipment subject to such Master Lease Agreement. 72 76 SCHEDULE 5 WARRANTIES NOT UPDATED TO CLOSING Section - ------- 4.2.2(b) 4.2.2(c) 5.3.1 5.3.2(ii) 5.3.4 6.1.1 6.1.2 6.5.4 8.4.2(b) 8.4.3 8.4.5(a) 8.4.5(b)(iii) 9.4 73 77 SCHEDULE 6 PART 1 CLOSING EVENTS 1 On the Closing Date the Vendors shall deliver to the US Purchaser or the Canadian Purchaser, as the case may be, the following: 1.1 DOCUMENTS OF TRANSFER. Such absolute bills of sale, assignments, special warranty deeds, endorsements, affidavits (including, without limitation, Internal Revenue Code Section 1445 (FIRPTA) and title affidavits), and other instruments and documents of sale, transfer, assignment and conveyance as Purchasers may reasonably require, in order to lawfully, effectively and properly sell, transfer, assign, purchase and convey to Purchasers good right, title and interest in and to all of the Acquired Assets, as required herein, in each case substantially in the form attached hereto on Part 3 of this Schedule or Schedule 15, as the case may be, with respect to personal property and Intangible Property and in such other form reasonably acceptable to the Vendors and Purchasers with respect to all other property, dated as of the Closing Date, and duly executed and, if necessary, acknowledged by the US Vendor or the Canadian Vendor, as applicable; 1.2 Physical Delivery. Those Acquired Assets which are capable of transfer by delivery; 1.3 BOOKS AND RECORDS. All books, records and other information relating to the Operations or Continuing Employees of the Operations and all information relating to customers, suppliers, agents and distributors; 1.4 RESOLUTIONS. Copies of the resolutions duly adopted by the Board of Directors or shareholders of each of the Vendors, authorizing the respective entity to enter into and perform its obligations under this Agreement and any other agreements contemplated hereby, certified by proper officers of the respective entity as in full force and effect on and as of the Closing Date; 1.5 TAX DEED OF COVENANT. The Tax Deed of Covenant duly executed by the Covenantors named therein, in substantially the form attached hereto on Part 4 of this Schedule; 74 78 1.6 GOOD STANDING CERTIFICATES. Good standing certificates for US Vendor and Canadian Vendor from their jurisdictions of incorporation and each jurisdiction where they are required to qualify to do business as a foreign corporation, dated no earlier than 15 days before the Closing Date; 1.7 THIRD PARTY CONSENTS. The original signed copies of all Third Party Consents that have been obtained prior to the Closing; 1.8 INCUMBENCY CERTIFICATES. Certificates of the Secretaries of each Vendor as to the incumbency and signatures of their respective officers executing this Agreement or any agreements contemplated hereby; 1.9 OTHER DOCUMENTS. All other agreements, certificates, instruments and documents reasonably requested by the Purchasers in order to fully consummate the transactions contemplated by this Agreement and carry out the purposes and intent of this Agreement. 75 79 SCHEDULE 6 PART 2 VENDOR'S ACCOUNTING PERIODS Set out below are the dates of the last Business Day of the Vendor's relevant accounting periods (which end on Saturdays by convention) for the first four periods following the signing of this Agreement: April 3, 1999 May 1, 1999 May 29, 1999 July 3, 1999 76 80 SCHEDULE 6 PART 3 FORM OF BILL OF SALE BILL OF SALE ------------ REFERENCE IS MADE to that certain Assets Sale and Purchase Agreement, dated April 6, 1999 (the PURCHASE AGREEMENT), among BICC Cables Corporation, Pyrotenax USA Inc. (together with BICC Cables Corporation, the US VENDOR), BICC Cables Canada Inc. (the "CANADIAN VENDOR"), BICC plc (the VENDORS' GUARANTOR), GK Technologies, Incorporated (referred to as both the US PURCHASER and the CANADIAN PURCHASER and General Cable Corporation (the PURCHASERS' GUARANTOR). Unless otherwise defined, capitalized terms used herein have the meanings provided in the Purchase Agreement. KNOW THAT the undersigned, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound hereby, does hereby sell, assign, transfer, bargain, convey and deliver, subject to and in accordance with the Purchase Agreement, the [US] [Canadian] Assets, together with the [US] [Canadian] Assumed Liabilities to the [US] [Canadian] Purchaser, to have and hold such [US] [Canadian] Assets unto such Purchaser, its successors and assigns, to and for its proper use and benefit from this date and forever thereafter. Notwithstanding the foregoing, the undersigned reserves and does not sell or transfer to the [US] [Canadian] Purchaser any right, title or interest in or to any of the Excluded Assets or any of the Excluded Liabilities. Pursuant to the Purchase Agreement, the undersigned shall, at any time and from time to time, at the reasonable written request of the [US] [Canadian] Purchaser, execute and deliver such Purchaser all other and further instruments as are reasonably necessary to effectuate the transfers contemplated pursuant to the Purchase Agreement. WITNESS the due execution and delivery of this Bill of Sale on this ___ day of _____________________, 1999. BICC CABLES CORPORATION By: -------------------------- Name: Title: 77 81 SCHEDULE 6 PART 4 FORM OF TAX DEED OF COVENANT THIS TAX DEED OF COVENANT (the DEED) is made on ___________, 1999 BETWEEN: (1) BICC CABLES CORPORATION, a company incorporated in Delaware, the United States, whose principal place of business is at One Crosfield Avenue, West Nyack, NY; (1a) PYROTENAX USA INC. (together with BICC Cables Corporation, the US VENDOR), a company incorporated in Delaware, the United States; (2) BICC CABLES CANADA INC. (the CANADIAN VENDOR), a company incorporated under the laws of Canada, whose principal place of business is at 265 Yorkland Blvd., Suite 500, North York, Ontario M2J 155; (3) BICC PLC (the VENDORS' GUARANTOR:), a company incorporated in England and Wales, whose registered office is at Devonshire House, Mayfair Place, London W18 5FA; (4) GK TECHNOLOGIES, INCORPORATED (the US PURCHASER), a company incorporated in New Jersey, the United States, whose principal place of business is at 4 Tesseneer Drive, Highland Heights, KY 41076; (5) GK TECHNOLOGIES, INCORPORATED (the CANADIAN PURCHASER), a company incorporated in New Jersey, the United States, whose principal place of business is at 4 Tesseneer Drive, Highland Heights, KY 41076; and (6) GENERAL CABLE CORPORATION (the PURCHASERS' GUARANTOR), a company incorporated in Delaware, the United States, whose principal place of business is at 4 Tesseneer Drive, Highland Heights, KY 41076. WHEREAS this Deed is entered into pursuant to the provisions of an Agreement dated _______________, 1999 and made by and between the parties set forth above (the AGREEMENT). IT IS AGREED as follows: 78 82 1. INTERPRETATION In this Deed , including Exhibit A attached hereto, the headings shall not affect its interpretation and: 1.1 words and expressions defined in the Agreement shall have the same meaning wherever used in this Deed and the provisions of Sections 1.2 and 1.5 of the Agreement shall be deemed to be incorporated in this Deed; 1.2 the following expressions bear the following meanings namely: "CLAIM" includes any liability to make a payment of Taxes and any notice, demand, assessment, letter or other document issued by or for any Governmental Authority indicating that any Purchaser is or may be placed or sought to be placed under a liability to make a payment of Taxes; "LIEN" means any mortgage, lien, charge, restriction, pledge, security interest, option, easement, encroachment or encumbrance; "TRANSACTION" includes any transaction, circumstance, act or event of whatever nature; 1.3 references to "PROFITS" include income, profits or gains (including capital gains) and references to profits earned, accrued or received include profits deemed to have been or treated as earned, accrued or received for Tax purposes. 2. REPRESENTATIONS OF US VENDOR 2.1 Subject as hereinafter provided or disclosed on Exhibit A attached hereto, the US Vendor hereby represents to the US Purchaser that: (a) There are no Tax Liens (other than Liens for current Taxes not yet due and payable) upon the Acquired Assets. All Taxes which US Vendor is required by Law to withhold or collect, including sales and use Taxes, and amounts required to be withheld for Taxes of employees and other withholding Taxes, have been duly withheld or collected and, to the extent required, have been paid over to the proper Governmental Authorities or are held in separate bank accounts for such purpose. (b) The US Vendor is not a "foreign person" as defined in Section 1445(f)(3) of the Code. 79 83 (c) The US Vendor has filed all material Tax Returns that it was required to file. All such Tax Returns were correct and complete in all material respects. All material Taxes currently owed by the US Vendor (whether or not shown on any Tax Return have been paid or provision for which has been made. The US Vendor has never received notice by a Taxing authority in a jurisdiction for which no material Tax Return has been filed that it is or may be subject to Tax by or in that jurisdiction. (d) There is no material dispute or claim concerning any Tax liability of the US Vendor either (A) claimed or raised by any Governmental Authority in writing or (B) as to which the US Vendor has knowledge. (e) The US Vendor has not waived any statute of limitations in respect of Taxes nor agreed to any extension of time with respect to a Tax liability or deficiency. (f) The US Vendor has not made and is not obligated to make any payment that will not be deductible under Section 280G of the Code. 3. REPRESENTATIONS OF THE CANADIAN VENDOR 3.1 Subject as hereinafter provided or disclosed on Exhibit A attached hereto, the Canadian Vendor represents to the Canadian Purchaser: (a) The Canadian Vendor has duly and timely filed with the appropriate Governmental Authority all Tax Returns required to be filed by it and has duly completed and correctly reported all income required to be reported thereon in all material respects; (b) The Canadian Vendor has duly and timely paid all Taxes, including all installments on account of Taxes for the current year, that are due and payable by it. (c) The Canadian Federal and provincial income and capital Tax liabilities of the Canadian Vendor have been assessed by the relevant Governmental Authority and notices of assessment or notifications that no Tax is payable have been issued to it by the relevant Governmental Authorities prior to 1997. (d) There are no actions, suits, proceedings, investigations, audits or claims now pending or, to the knowledge of the Canadian Vendor or the Vendors' Guarantor, threatened 80 84 against the Canadian Vendor in respect of any Taxes and there are no matters under discussion, audit or appeal with any Governmental Authority relating to Taxes. (e) The Canadian Vendor has duly and timely withheld from any amounts paid or credited by it to or for the account or benefit of any Person, including, without limitation, any of its employees, officers and directors and any non-resident Person, the amount of all Taxes and other deductions required by applicable Law to be withheld from any such amount, and has duly and timely remitted the same to the appropriate Governmental Authority. (f) The Canadian Vendor is duly registered under subdivision (d) of Division V of Part IX of the Excise Tax Act (Canada) with respect to the goods and services Tax and harmonized sales Tax and under Division I of Chapter VIII of Title I of the Quebec Sales Tax Act with respect to the Quebec sales Tax, and its registration numbers are 87399 2842RT and 10188220737, respectively. (g) The Canadian Vendor has not filed any elections, designations or similar filings for purposes of the Income Tax Act (Canada) or any relevant provincial Tax statute that would affect any of the Canadian Assets. (h) The Canadian Vendor is not a non-resident of Canada for purposes of the Income Tax Act (Canada). 4. COOPERATION. 4.1 Each of the Vendors shall make available to the Relevant Purchaser, such records as such Relevant Purchaser may reasonably require for the preparation of any Tax Returns or other similar reports or forms required to be filed by such Relevant Purchaser and such records as the Relevant Purchaser may require for the defense of any audit, examination, administrative appeal or litigation of any such Tax Return or any other report or form. 4.2 Each of the Relevant Purchasers shall make available to the Vendors, such records as such Vendor may reasonably require for the preparation of any Tax Returns or other similar reports or forms required to be filed by such Vendor and such records as the Vendor may require for the defense of any audit, examination, administrative appeal or litigation of any such Tax Return or any other report or form. 81 85 5. BULK SALES. The Relevant Vendor shall use reasonable commercial efforts to comply with the Laws of any jurisdiction relating to the bulk sale or transfer of assets for Tax purposes that may be applicable to the transfer of the U.S. Assets or the Canadian Assets, as the case may be, as soon as practicable after the date hereof, and the Relevant Vendor shall indemnify the Relevant Purchaser from any Losses to such Relevant Purchaser resulting from any noncompliance in accordance with Section 7 of this Deed. 6. CANADIAN ELECTIONS. 6.1 GST ELECTION. The Canadian Vendor and the Relevant Purchaser shall jointly elect under subsection 167(l) of Part IX of the Excise Tax Act (Canada) and any provincial legislation imposing a similar value added or multi-staged Tax, that no Tax be payable with respect to the sale and purchase of the Canadian Assets pursuant to this Agreement. The Canadian Vendor and the Canadian Purchaser shall make such election in the prescribed form containing prescribed information pursuant such Laws and the Canadian Purchaser shall file the joint election in compliance with the requirements of the Excise Tax Act (Canada) and any provincial legislation imposing a similar value added or multi-staged Tax. 6.2 ELECTION. The Canadian Vendor and the Canadian Purchaser shall jointly elect in prescribed form to have section 22 of the Income Tax Act (Canada) apply to the sale of the Accounts Receivable by the Canadian Vendor to the Canadian Purchaser. 7. INDEMNIFICATION. 7.1 BREACHES OF REPRESENTATIONS AND COVENANTS. Subject to the provisions set forth in Section 9, the US Vendor and the Canadian Vendor (as is applicable "COVENANTOR") agree to indemnify the US Purchaser and the Canadian Purchaser, respectively, against, and agree to hold harmless from, any and all Losses incurred or suffered by them arising out of or in connection with any of the following: (a) any breach of or any inaccuracy in any representation or warranty made by the relevant Covenantor in this Tax Deed of Covenant set forth in Sections 2, 3, 4 and 5; or (b) any breach of or failure by the relevant Covenantor to perform any of its covenants or obligations set forth in this Tax Deed of Covenant. 82 86 7.2 EXCLUSIONS FROM INDEMNIFICATION. For the avoidance of doubt, this Section 7 shall not cover any Tax liability by reference to any profits earned, accrued or received after Closing or in respect of or arising from any Transaction effected or deemed to have been effected after Closing (except to the extent that such item is properly accounted for in Tax periods ending on or prior to Closing). 8. PRORATION OF REAL ESTATE TAXES. All real estate, personal property and ad valorem Taxes relating to the US Assets and the Canadian Assets which shall have accrued and become payable prior to Closing shall be paid by the US Vendor and the Canadian Vendor, respectively. All such Taxes which shall be accrued but unpaid shall be prorated to Closing; provided, however, that the parties hereby agree to promptly make appropriate payments which are required to adjust the prorations to reflect the actual amount of such Taxes payable when such amount is determined by the appropriate Governmental Authority. In connection with the proration of Taxes, in the event that actual Tax figures are not available at Closing, proration of Taxes shall be based upon 105% of the actual Taxes for the preceding year for which actual Tax figures are available. The amount due one party as the result of such proration shall be paid to the other party at Closing. 9. EXCLUSIONS 9.1 Neither the US Vendor nor the Canadian Vendor shall be liable under Section 7 above, respectively: (a) in respect of any Tax liability to the extent that adequate provision or reserve for such Tax liability was made in the Net Asset Statement or to the extent that such Tax liability was discharged prior to Closing; or (b) to the extent that such Tax liability arises or is increased as a consequence of any change in the accounting policy or practice adopted by the Relevant Purchaser after Closing (except with respect to any change made to correct any erroneous or improper historic Tax accounting policies or practices, if any, of the Relevant Vendor); or (c) to the extent that the liability would not have arisen but for or is increased by a Transaction effected by the Covenantor prior to Closing at the request or with the approval of the Relevant Purchaser; or 83 87 (d) to the extent that recovery has been made in respect of the same subject matter under the Agreement and any payment made by (or procured by) the Covenantor under this Deed shall reduce by that amount any claim in respect of the same subject matter by the Relevant Purchaser under the Agreement. 9.2 The provisions of Section 2.3 of the Agreement shall have effect as if expressly incorporated in this Deed and in the case of conflict between the provisions of the Agreement and this Deed, this Deed shall prevail. 10. CLAIMS 10.1 If the Relevant Purchaser becomes aware after Closing of any Claim which could give rise to a liability of a Covenantor under this Deed, the Relevant Purchaser shall procure that notice thereof is given as soon as reasonably practicable to the Covenantor in the manner hereinafter provided. As regards any such Claim, the Covenantor shall be entitled at its own expense in its absolute discretion to take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest such Claim and any adjudication in respect thereof in the name of and on behalf of the Relevant Purchaser concerned, or to require the Relevant Purchaser concerned to take any such action. Notwithstanding the foregoing, however, the Covenantor shall allow the Relevant Purchaser reasonable opportunity to participate in any such proceedings, negotiations or appeal. The Covenantor shall also have the right at its own expense in its absolute discretion to conduct or direct the conduct of any related proceedings, negotiations or appeals. 10.2 The Relevant Purchaser will not, without the written consent of the Covenantor, compromise or settle any Claim or agree any matter which may affect the outcome of any dispute or negotiation with any Tax authority in relation to a Claim which may result in a liability under this Deed. 10.3 The Relevant Purchaser will give all such information and assistance as the Covenantor or its professional advisers reasonably request, including access to premises and personnel, and the right to examine and copy any accounts, documents and records, for the purpose of Section 10.1 above, limited in scope to the subject matter of the Claim. The Covenantor agrees to keep all such information confidential and only to use it for such purpose. 11. DUE DATE FOR PAYMENT 84 88 11.1 The due date for payment under this Section 11 shall be as follows: (a) where a liability of the Covenantor under Section 7 arises from a liability of a Relevant Purchaser to make a payment of Taxes which has not at the date of the notice under Section 10.1 been made, no later than the date which falls ten (10) days prior to the latest date on which such Tax liability becomes payable to the relevant Governmental Authority in order to avoid a liability to interest or penalties accruing (and if such date falls on a Saturday or Sunday, the next Business Day). (b) in any other case, ten (10) days after service by the Relevant Purchaser of a notice containing a written demand in respect of the matter for which the Covenantor is liable. 11.2 The provisions of Section 19.10 of the Agreement are expressly incorporated herein by reference. 12. RELEVANT PURCHASER'S INDEMNITY 12.1 The Relevant Purchaser hereby covenants with the Covenantor to pay to the Covenantor an amount equal to any Tax liability for which the Covenantor becomes liable in consequence of the failure by the Relevant Purchaser to discharge any Tax liability within a specified period or otherwise where such Tax liability arises in circumstances such that the Relevant Purchaser would not have been entitled to make a claim against the Covenantor under Section 7 of this Deed in respect of any Tax liability which has been the subject of a Claim by the Relevant Purchaser under this Deed which has been satisfied. 12.2 Any amount paid by the Relevant Purchaser to the Covenantor pursuant to this Section 12 shall be paid by way of adjustment to the Purchase Price under the terms of the Agreement. 13. RECOVERY FROM THIRD PARTIES If the Covenantor has paid an amount in respect of any Tax liability under Section 11 hereof and the Relevant Purchaser is entitled at the due date for the making of that payment to recover from some other person any sum in respect of the Tax liability which has resulted in that payment becoming due from the Covenantor, or at some subsequent date becomes entitled to make such a recovery, then the Relevant Purchaser shall as soon as reasonably practicable notify the Covenantor of such entitlement and shall, if so requested by the Covenantor and 85 89 subject to the Relevant Purchaser being indemnified to its reasonable satisfaction by the Covenantor against all losses (including additional Tax liabilities), costs, damages and expenses which may thereby be incurred, take all reasonable steps to enforce that recovery (keeping the Covenantor informed of the progress of any action taken) and shall account to the Covenantor for the whole of any unrestricted sum so recovered (including any interest or repayment supplement paid to the Relevant Purchaser on or in respect thereof) less any costs and expenses of recovery up to an amount not exceeding the amount of any such payment previously made by the Covenantor in respect of the Tax liability which resulted in payment by the Covenantor pursuant to Section 10. 14. SAVINGS AND OVER-PROVISIONS. The provisions of Section 2.3.7 of the Agreement are expressly incorporated herein by reference. 15. WITHHOLDINGS AND DEDUCTIONS 15.1 All sums payable by the Covenantor to the Relevant Purchaser under this Deed shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever except as may be required by law. 15.2 If any deduction or withholding is made from any payment as contemplated in Section 15.1, the Covenantor shall supply to the Relevant Purchaser such official receipt, if any, or other evidence of payment to the relevant authority of the amount deducted or withheld and shall give all reasonable assistance to enable the Relevant Purchaser to receive a credit or refund or similar benefit by reason of the deduction or withholding as promptly as possible. 16. MISCELLANEOUS The provisions of Section 19 (Other Provisions) of the Agreement shall apply mutatis mutandis to this Deed, replacing references to the Vendor by references to the Covenantor and references to the Agreement by references to this Deed and making any other necessary modifications. 17. ILLEGALITY If at any time any provision hereof is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. 86 90 IN WITNESS WHEREOF this document has been duly executed as of the day and year first above written. BICC CABLES By: -------------------------------- Name: ------------------------------- Title: ------------------------------ BICC CABLES CANADA INC. By: -------------------------------- Name: ------------------------------- Title: ------------------------------ PYROTENAX USA INC. By: -------------------------------- Name: ------------------------------- Title: ------------------------------ GK TECHNOLOGIES, INCORPORATED, IN ITS CAPACITY AS US PURCHASER AND CANADIAN PURCHASER By: -------------------------------- Name: ------------------------------- Title: ------------------------------ GENERAL CABLE CORPORATION By: -------------------------------- Name: ------------------------------- Title: ------------------------------ 87 91 EXHIBIT A TO BICC / GENERAL CABLE TAX DEED OF COVENANT PART 1: REPRESENTATIONS OF US VENDOR. ------------------------------------- DISCLOSURES FOR BICC CABLES CORPORATION EXTENSIONS - ----------
TAX YEAR TYPE EXTENDED DATE - -------- ---- ------------- 12/31/94 Federal Income Tax 12/31/99 12/31/93 Federal Income Tax 12/31/99 12/31/94 Federal Employment Tax 12/31/99 12/31/95 Federal Employment Tax 12/31/99 To be provided Illinois Sales and Use Tax To be provided 1993-95 New York State Income Tax 1/31/00
AUDITS Federal IRS Income Tax Completed through 12/31/95 Federal Employment Tax Years 1994-1997 Open Connecticut Sales and Use Tax through 7/97 Protest filed 1/99 Illinois Sales and Use Tax in Process Open New York State Income Tax - Start date 4/6/99 Open (Years 1993-95)
TAX LIENS - --------- New York State Employment Tax Lien removed
STATES WITH INVENTORY AND PLANTS - -------------------------------- Connecticut Plant and Inventory NYS Headquarters - inventory (Pyro US) Massachusetts Plant and Inventory Tennessee Plant and Inventory Texas Plant and Inventory Illinois Plant and Inventory Indiana Plant and Inventory Arkansas Plant and Inventory
TAX SHARING AGREEMENT WITH OTHER BICC, PLC COMPANIES IN US. BICC CABLES CORPORATION FILES A CONSOLIDATED RETURN WITH OTHER BICC, PLC COMPANIES IN THE US. 88 92 PROPERTY TAX - ------------ Only issue is for Texas plant for consigned inventory of Reynolds metals. Taxing authority will allow rendition to include Reynolds consigned inventory. Claim in process for 1998 filing. NON-FILING - ---------- BICC Cables Corporation has registered in Michigan. We do not believe we have nexus in the state and therefore, have not filed returns. The state has not contacted us with regard to filing. IRS AUDIT ISSUES There are no carryover issues that will effect the assets purchased. Transfer pricing between the US - Canada and the US - UK was reviewed with no adjustments proposed. Employment Tax issues relate to employee loans which will be resolved with the sale of the business. PART 2: REPRESENTATIONS OF CANADIAN VENDOR. ------------------------------------------- Appeal of British Columbia Social Service Tax Assessment dated September 10, 1998. The assessed amount of Tax has been paid. Notice of Assessment from the Commencement of Quebec dated May 8, 1998 for 1996 payroll Taxes which is under discussion. The assessed amount of Tax has been paid. 89 93 SCHEDULE 7 NET ASSET STATEMENT 1. The Net Asset Statement shall be prepared in accordance with UK GAAP prevalent as of December 31, 1998, excluding the impact of FRS 11 and on a basis consistent with the Combined Accounts and shall be drawn up in accordance with the provisions of Sections 2 and 3 below and, to the extent not inconsistent therewith: 1.1 the accounting policies for the Operations as attached to the Combined Accounts and included in the Disclosure Letter; and to the extent not inconsistent therewith; 1.2 the accounting policies and principles applied in the preparation of the audited accounts relating to the BICC Group for the period ended December 31, 1998, excluding the impact of FRS 11, and otherwise; 1.3 in accordance with the accounting policies and principles generally accepted in the United Kingdom, excluding the impact of FRS 11 as in effect on December 31, 1998. 2. No account shall be taken of events taking place after Closing and regard shall only be had to information available to the parties to this Agreement at Closing. 3. The Net Asset Statement shall be expressed in pounds sterling. Amounts in other currencies shall be translated into sterling at the exchange rates specified in the Exchange Cross Rates Table published in the Financial Times, London Edition, on the Closing Date. 90 94 SCHEDULE 8 REPRESENTATIONS AND WARRANTIES GIVEN BY THE VENDORS UNDER SECTION 7.1 Knowing that Purchasers rely thereon, the Vendors jointly and severally represent and warrant to the Purchasers as follows: 1. AUTHORITY AND CAPACITY 1.1 Each Vendor and the Vendors' Guarantor is a company duly incorporated and validly existing under the laws of its jurisdiction of incorporation. Each Vendor is duly qualified and registered to do business in each jurisdiction where such qualification or registration is required by applicable law except where the failure to be so qualified would not have a material adverse effect on the Operations or the financial condition or results of operations thereof. Except as set forth on the Disclosure Letter, neither Vendor has any Subsidiaries nor owns any securities of any corporation or any other interest in any person. Neither Vendor has agreed or is obligated to make, or is bound by any Contract under which it may become obligated to make, any future equity or similar investment in or capital contribution to any other person. 1.2 Subject to receipt of approval by Vendors' Guarantor's shareholders, each Vendor and the Vendors' Guarantor has the legal right and full power and authority to enter into and perform its obligations under this Agreement and the Tax Deed of Covenant and any other documents to be executed by such Vendor and the Vendors' Guarantor pursuant to or in connection with this Agreement. 1.3 This Agreement and the Tax Deed of Covenant, and any other agreements executed or to be executed in connection herewith or therewith, will when duly executed, constitute legally valid and binding obligations of each of the Vendors and the Vendors' Guarantor which are party thereto, enforceable against each of the Vendors and the Vendors' Guarantor in accordance with their respective terms, subject as to enforcement of remedies to applicable bankruptcy, insolvency, reorganization and similar laws affecting generally the enforcement of rights of contracting parties and to a court's discretionary authority with respect to the granting of a decree ordering specific performance or other equitable remedies. 1.4 The execution and delivery of, and the performance by the Vendors of their obligations under, this Agreement and the Tax Deed of Covenant and any other documents to be executed by the Vendors pursuant to or in connection with this Agreement, and the execution and delivery of, and the performance by the Vendors' Guarantor of its obligations under this Agreement and any other documents to be executed by the Vendors' Guarantor, will not: 1.4.1 result in a violation of or default under of any provision of the articles of incorporation, bylaws and/or other charter documents of any Vendor or Vendors' Guarantor; or 1.4.2 result in a breach of any Judgment to which any Vendor is a party or by which any Vendor is bound; or 91 95 1.4.3 constitute a violation of any Law that is applicable to either Vendor or their respective businesses or assets except where the violation would not have a material adverse effect on the Operations or on the financial condition or results of operations thereof or on the ability of the parties to consummate the transactions contemplated by this Agreement; or 1.4.4 Subject to the need to obtain any Third Party Consent, conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under, any Contract or result in the imposition of any Encumbrance upon any of the Acquired Assets, except where the violation, conflict, breach, default, acceleration, termination, modification, cancellation, failure to give notice, or Encumbrance would not have a material adverse effect on the Operations or on the financial condition or results of operations thereof, or on the ability of the parties to consummate the transactions contemplated by this Agreement. Except in regards to the HSR Act or as disclosed in the Disclosure Letter, the Vendors do not need to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any Governmental Authority in order for the parties hereto to consummate the transactions contemplated by this Agreement, except where such authorization, consent or approval would not have a material adverse effect on the Operations or on the financial condition or results of operations thereof or on the ability of the parties hereto to consummate the transactions contemplated by this Agreement. 1.5 Subject to receipt of approval by the shareholders of Vendors's Guarantor all corporate action required to be taken by the Vendors and Vendors' Guarantor validly and duly to authorize the execution and delivery of, and to exercise their rights and perform their obligations under, this Agreement, the Tax Deed of Covenant and any other documents to be executed by the Vendors or Vendors' Guarantor at the Closing pursuant to or in connection with this Agreement, have been duly taken or will have been duly taken before Closing. 2. DISCLOSURE LETTER AND DATA ROOM; FULL DISCLOSURE 2.1 To the knowledge of the Vendors, no representation or warranty made by the Vendors in this Agreement or pursuant hereto (a) contains any untrue statement of material fact; or (b) omits to state any material fact that is necessary to make the statements made, in light of the circumstances under which they are made, not false or misleading in any respect. 2.2 The Data Room has been collated by the Vendors in good faith. 3. ACCOUNTS AND RECORDS 3.1 COMBINED ACCOUNTS The Combined Accounts: (a) have been prepared on a basis consistent with the accounting policies and principles set out in Section 1 (including Subsections 1.1, 1.2 and 1.3, but excluding Sections 2 and 3) of Schedule 7; 92 96 (b) fairly present in all material respects the state of affairs of the Operations as at the Balance Sheet Date for the financial year ended on that date. 3.2 MANAGEMENT ACCOUNTS The Management Accounts have been properly prepared in accordance with the principles set out in Section 1 (including Subsections 1.1, 1.2 and 1.3, but excluding Sections 2 and 3) of Schedule 7. 3.3 ACCOUNTING AND OTHER RECORDS The statutory books and books of account and other records of whatsoever kind relating to the Operations are up-to-date and maintained in accordance with all applicable legal requirements on a proper and consistent basis and contain complete and accurate records of all matters required to be dealt with in such books. All such books and records and all other documents (including documents of title and copies of all subsisting agreements to which either Vendor is a party) are in the possession (or under the control) of the Canadian Vendor or the US Vendor, as applicable, and no notice or allegation that any is incorrect or should be rectified has been received. 3.4 CHANGES SINCE BALANCE SHEET DATE 3.4.1 Since the Balance Sheet Date, the Operations have been carried on in the ordinary course, without any interruption or alteration in their nature, scope or manner and so as to maintain the same as a going concern. 3.4.2 Since the Balance Sheet Date, there has been no material adverse change in the Operations or on the financial condition or results of operations thereof. 3.4.3 Since the Balance Sheet Date, except in the ordinary course of business, neither Vendor has created or assumed any Encumbrance upon any of the Acquired Assets. 3.4.4 Except as set forth on the Disclosure Letter, since the Balance Sheet Date and prior to the date of this Agreement, neither Vendor has taken any action that would have required the consent of the Purchasers pursuant to Section 5.2.1(b), (c), (d), (e) or (f) of the Agreement. 4. LEGAL MATTERS No reference to any law or Licence (howsoever expressed) in Section 4.1 or 4.2 below shall be deemed to include a reference (directly or indirectly) to any Environmental Laws (as defined in Schedule 16), and it is expressly acknowledged that no representation or warranty is given by or on behalf of the Vendors in this Agreement or otherwise in respect of any Environmental Laws except as provided in Schedule 16. 93 97 4.1 COMPLIANCE WITH LAWS The Operations and the ownership, possession and use of the assets of each Vendor currently comply with all applicable Laws except where such non-compliance would not have a material adverse effect on the Operations or on the financial condition or the results of operations thereof. Neither Vendor is in violation of their respective articles of incorporation, by-laws or other charter documents. Except as described in the Disclosure Letter, there is no investigation or inquiry by any Governmental Authority, or Judgment outstanding or to the knowledge of the Vendors, threatened against either Vendor, or any person for whose acts or defaults they may be vicariously liable which would have a material adverse effect upon the Operations or on the financial condition or the result of operations thereof, nor has any notice or other communication (official or otherwise) from any Governmental Authority been issued with respect to an alleged actual or potential violation and/or failure to comply with any such applicable Law, or requiring it/them to take or omit any action which would have a material adverse effect on the Operations or on the financial condition or the results of operations thereof and neither Vendor is aware of any circumstances which are likely to give rise to any such investigation or inquiry. 4.2 PERMITS AND CONSENTS Nothing in this Section 4.2 applies to Permits of Intangible Property rights (including Software) or environmental Licenses. 4.2.1 All material Third Party Consents which are necessary for the transfer to a Relevant Purchaser of the Operations or any part thereof or the entry into or completion of this Agreement are listed in the Disclosure Letter and have been obtained (other than those still required, details of which are set out in the Disclosure Letter). 4.2.2(a) All material Permits necessary for carrying on the Operations as and where now carried on have been obtained, are in full force and effect and have been and are being complied with in all material respects; (b) neither Vendor is aware of any reason why any of such Permits should be suspended, threatened or revoked; (c) all such Permits which are material to the Operations are listed on the Disclosure Letter, and true and correct copies of all such material Permits have been made available to the Purchasers. 4.3 LITIGATION 4.3.1 Except as described in the Disclosure Letter, no breach of contract, breach of warranty, tort, negligence, infringement, product liability, discrimination, wrongful discharge or other claim of any nature has been asserted or, to the knowledge of either Vendor, threatened by or against either Vendor at any time since January 1, 1997 which if determined adversely to the 94 98 Vendors would have a material adverse effect on the Operations or the financial condition or results of operations thereof. 4.3.2 Except as described in the Disclosure Letter, as at the date hereof, neither Vendor (or any person for whose acts or defaults either Vendor may be vicariously liable) is involved whether as plaintiff or defendant or other party in any claim, legal action, proceeding, suit, litigation, prosecution, investigation, inquiry or arbitration (other than as plaintiff in the collection of debts arising in the ordinary course of business) which is material to the Operations or the financial condition or results of operations thereof and, so far as either Vendor is aware, no such claim, legal action, proceeding, suit, litigation, prosecution, investigation, inquiry or arbitration is pending or threatened by or against either Vendor (or any person for whose acts or defaults either Vendor may be vicariously liable). 4.3.3 As at the date hereof, so far as the Vendors are aware, there are no investigations, disciplinary proceedings or other circumstances likely to lead to any such material claim or legal action, proceeding, suit, litigation, prosecution, investigation, inquiry or arbitration described in Section 4.3.2. 4.4 ENVIRONMENTAL LIABILITY The only environmental Warranties relating to the Operations are contained in Section 2 of Schedule 16. 4.5 INSOLVENCY 4.5.1 No order has been made, petition presented, resolution passed or meeting convened for the winding up (or other process whereby the business is terminated and the assets of the company concerned are distributed amongst the creditors and/or shareholders or other contributories) of either Vendor, and there are no cases or proceedings under any applicable insolvency, reorganization or similar laws in any jurisdiction concerning either Vendor, and, so far as the Vendors are aware, no events have occurred which, under applicable laws, would justify any such cases or proceedings. 4.5.2 No petition has been presented or other proceedings have been commenced by or against (i.e., voluntarily or involuntarily) either Vendor for an administration order to be made (or any other order to be made by which, during the period it is in force, the affairs, business and assets of the company concerned, are managed by a person appointed for the purpose by a court or other Governmental Authority) in relation to either Vendor in relation to the Operations, nor has any such order been made. 4.5.3 No receiver (including an administrative receiver), liquidator, trustee, administrator, custodian or similar official has been appointed in any jurisdiction in respect of the whole or any part of the business or assets of either Vendor or in respect of any of the Acquired Assets and, so far as either Vendor is aware, no step has been taken for or with a view to the appointment of such a person. 95 99 4.5.4 Neither Vendor is insolvent or unable to pay its debts as they become due. 5. TRADING AND CONTRACTUAL ARRANGEMENTS 5.1 CAPITAL COMMITMENTS Except as set forth in the Disclosure Letter, there are no material capital commitments entered into or proposed by or on behalf of the US Vendor or the Canadian Vendor other than as set forth in the capital budgets. For these purposes, a material commitment is one involving capital expenditure of over $400,000. 5.2 ARRANGEMENTS WITH RELATED PERSONS ETC. 5.2.1 Except as described in the Disclosure Letter, there is no indebtedness (actual or contingent) nor any indemnity, guarantee or security arrangement between or among either Vendor, any member of the Vendors' Group, any officer, Senior Employees or director of either Vendor or any husband or wife of such persons. 5.2.2 Except as described in the Disclosure Letter, or for Contracts, arrangements or understandings related to compensation or employment, neither Vendor nor any member of the Vendors' Group is party to any Contract, arrangement or understanding with any officer, Senior Employee or director of either Vendor or any husband or wife of such persons, or in which any such person as aforesaid is interested (whether directly or indirectly), other than on normal commercial terms in the ordinary course of business. 5.2.3 There are no existing Contracts or arrangements with a value in excess of $500,000, per annum between or involving either Vendor and any member of the Vendors' Group other than in the ordinary course of business. 5.3 CONTRACTS 5.3.1 Section 5.3.1 of the Disclosure Letter lists the following types of Contracts to which either Vendor is a party and which relate to the Operations (MATERIAL CONTRACTS): (a) any agreement (or group of related agreements) for the lease of personal property to or from any person providing for lease payments in excess of $1,000,000 (one million dollars), per annum; (b) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, or involve consideration in excess of $2,500,000 (two million five hundred thousand dollars; (c) any agreement concerning a partnership or joint venture; 96 100 (d) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money in excess of $1,000,000 (one million dollars), including any capitalized lease obligation under which it has imposed a security interest on the Acquired Assets; and (e) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $2,500,000 (two million five hundred thousand dollars) other than customer contracts or distribution agreements, the performance of which involves consideration in excess of $7,500,000 (seven million five hundred thousand dollars). The Vendors have delivered to the Purchaser a correct and complete copy of each written agreement listed in Section 5.3.1 of the Disclosure Letter (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 5.3.1 of the Disclosure Letter. 5.3.2 With respect to each Material Contract (i) neither Vendor is in material breach or default, and to the knowledge of the Vendors, no other party is in breach or default and (ii) no event has occurred which with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration, under the agreement. 5.3.3 Except as set forth on the Disclosure Letter, neither Vendor is party to any unusual, long-term or onerous commitments, contracts or arrangements and any such not wholly on an arm's length basis in the ordinary course of business. For the purposes of this representation and warranty, a long-term commitment, contract or arrangement is one which is incapable of termination without cause by either Vendor on 180 days' notice or less. 5.3.4 Except as set forth in the Disclosure Letter, neither Vendor is party to any agency, distributorship, marketing, purchasing, manufacturing or licensing agreement or arrangement or any agreement or arrangement which restricts its freedom to carry on its business as currently carried on in any part of the world in such manner as it thinks fit so as to have a material adverse effect on the relevant Operations. 6. EMPLOYEES 6.1 GENERAL 6.1.1 There are no persons employed by the US Vendor or by the Canadian Vendor as of the date hereof other than the Employees identified in the Disclosure Letter. 6.1.2 The Disclosure Letter contains and sets forth a complete list of the following items as of the date of this Agreement: (a) The details, numbers and categories of Employees at each facility. 97 101 (b) A list of all persons working at each facility who are independent contractors, leased employees, consultants or who otherwise perform work at any facility. (c) A list and summary, including status, of all pending grievances brought or filed by individual Employees or a labor union or organization. (d) A list and summary, including status, of all outstanding demands for arbitration brought or filed by individual Employees or a labor union or organization. (e) A list of all outstanding workers' compensation claims and their anticipated valuation and/or reserve amounts. (f) A list of all outstanding hearing loss claims and their anticipated valuation and/or reserve amounts. (g) A list and summary, including status, of all pending investigations or on-going audits by any local, state/province or federal/national agencies of any facility, including, without limitations, claims related to safety, employment discrimination, unfair labor practices, affirmative action, compensation, benefits or EEO-1 compliance. (h) A list of all Collective Bargaining Agreements between US Vendor and Canadian Vendor and the labor unions or organizations that represent Employees. (i) A list of all written agreements between US Vendor or Canadian Vendor and any of their respective labor/labour unions which might interpret or change the plain language of any Collective Bargaining Agreement. (j) A list of all known current organizing efforts by any labor organization or union of the Employees of any of US Vendor's and Canadian Vendor's facilities, including inter-union jurisdictional disputes. (k) A list of all employees, by facility, who have been laid-off or separated from employment due to economic conditions during the six (6) months prior to the date of this Agreement. 6.1.3 Except as disclosed in the Disclosure Letter, the Vendor's facilities have been and are being operated in compliance with all Laws relating to Employees, including, without limitation, employment standards, occupational health and safety, pay equity and human rights, document and record retention, except where the failure to be in compliance would not have a material adverse effect on the Operations or the financial condition or results of operations thereof. 6.1.4 There are no employment Contracts relating to Continuing Employees except those which have been reduced to writing and provided to Purchaser on or before the date hereof (or described in the Disclosure Letter). 98 102 6.1.5 All written individual Contracts of employment have been disclosed to the Purchaser in the Disclosure Letter. 6.1.6 Neither the US Vendor nor the Canadian Vendor is party to any contractual arrangement to make material changes to remuneration or other benefits or other terms of employment or to establish any new bonus arrangements for the Employees, except as stated in the Collective Bargaining Agreements identified in the Disclosure Letter or in the employment Contracts listed in Schedule 12 Section 1.1, of the Disclosure Letter. 6.1.7 All current assessments under the Workplace, Safety and Insurance Act (Ontario), the Workers' Health and Safety Commission (CSST) (Quebec) and the Saskatchewan Workers' Compensation Act in relation to the Canadian Vendor have been paid or accrued and the Canadian Vendor has not been subject to any special or penalty assessment under such legislation which has not been paid. 6.1.8 There are no claims or complaints, except those set forth in the Disclosure Letter, nor, to the knowledge of the Vendors, are there any threatened claims or complaints, against the Vendors, before any employment standards branch, pay equity, human or civil rights tribunal in the United States or Canada. To the knowledge of the Vendors nothing has occurred which might lead to a complaint against the Vendors, under any human rights legislation or employment standards legislation. There are no outstanding decisions or settlements or pending settlements which place any obligation upon the Vendors to deal or refrain from doing any act, except as set forth in the Disclosure Letter. 6.2 TERMINATION OF EMPLOYMENT 6.2.1 There are no claims outstanding on the date of this Agreement related to breach of contract of service, termination or severance obligations (either statutory or at common law), compensation for dismissal (either wrongful or constructive), equal pay, sex, race, disability or other discrimination with respect to any of the individuals identified on Schedule 11 of this Agreement or the Employment Letter. 6.2.2 As of the date of this Agreement, and except as stated in Schedule 11 and the Employment Letter, no Senior Employee has given to a Vendor or received from a Vendor notice terminating his employment or engagement. 6.2.3 No Liability which remains undischarged as of the date of this Agreement has been incurred by the US Vendor or the Canadian Vendor for breach of any contract of service or for termination or separation payments or for compensation for dismissal (wrongful or constructive), equal pay, sex, race, disability or other discrimination or failure to comply with any order for the reinstatement or re-engagement of any of the Continuing Employees. 6.3 DISCLOSURES OF EMPLOYMENT TAXES, EMPLOYEE LOANS AND COMPENSATION 6.3.1 The Vendors have paid to the appropriate authorities all Taxes, statutorily required payroll withholdings, and other contributions and charges due and payable in respect of the 99 103 Employees in respect of their employment by the US Vendor and the Canadian Vendor up to Closing or such amounts have been or will be accrued for in the Net Asset Statement. 6.3.2 Particulars of all loans made by the Vendors to Continuing Employees which are in excess of $15,000 and which shall remain outstanding at Closing, together with sums owed by the Vendors to any Employee (other than remuneration and other contractual or customary benefits) which are in excess of $15,000 are disclosed in the Disclosure Letter. 6.3.3 There are no accrued wages, overtime, bonuses, accrued vacation or sales commissions owed to any Continuing Employee, other than those which may be owing for the pay or payment period immediately preceding the Closing; such payments to be made by Vendors, except as provided in Schedule 12 of the Agreement. 6.4 PAYMENTS ON TERMINATION 6.4.1 All outstanding separation agreements, termination agreements or settlement agreements, any obligations therein, or obligations to pay termination or severance pay pursuant to any such agreements or statute, common law or otherwise, which arises with respect to services provided prior to Closing (other than those identified on Schedules 11 or 12 or in the Employment Letter) are Excluded Liabilities. 6.4.2 Without limiting Paragraph 6.4.1, Vendors shall also be responsible for any and all payments arising out of the special performance letters dated August 20, 1998, and August 24, 1998, concerning Anthony Cutri, Joseph DeBolt, William Fike, Linda Ermelin, Robert Jamieson. 6.4.3 There are no breaches and/or terminations of any contracts with leased or contingent employees, independent contractors, consultants or persons who provide labor, but who are the employees of any third party entity, who perform work at any facility, other than those listed in the Disclosure Letter. 6.4.4 Within the period of one year preceding the date hereof neither Vendor in relation to the Operations has been obliged by statute to give notice of terminations to a relevant authority or started consultations with any Employee representative body relating to any such termination. 6.5 COLLECTIVE BARGAINING RELATIONSHIPS 6.5.1 Vendors have fully complied with all of their obligations to bargain with the appropriate unions over the effects of the transactions contemplated by this Agreement. 6.5.2 There are no outstanding labour tribunal, Saskatchewan Labour Relations Board, Quebec Labour Court and/or Quebec Labour Commissioner, Ontario Labour Relations Board proceedings or United States National Labor Relations Board proceedings or proceedings before the labor relations board of any state within the United States of any kind, including, without limitations, any unfair labor practice, enforcement or compliance proceedings or proceedings which could result in certification of a trade union as bargaining agent or collective bargaining representative for any 100 104 Employees or dependant contractors of the Vendors not already covered by the Collective Bargaining Agreements identified in the Disclosure Letter. 6.5.3 There are no strikes or lockouts, as these terms are defined under both United States labor law and Canadian labour law. Neither Vendor has any unresolved grievances or pending arbitration matters, other than those listed on the Disclosure Letter. 6.5.4 To the knowledge of the Vendors there are no labor/labour problems that might materially affect the value of the facilities or the Purchaser's ability to operate any facility after the Closing. 6.6 PENSIONS AND OTHER EMPLOYEE BENEFITS 6.6.1 Employee Benefit Arrangements All of the Employee Benefit Arrangements in which the US Vendor and/or the Canadian Vendor have entered into, participate, or have liability for, are listed in Disclosure Letter and are expressly identified therein as between the US Vendor and the Canadian Vendor, as applicable. 6.6.2 Disclosure With respect to Employee Benefit Arrangement assumed by Purchasers, current and complete copies of all written Employee Benefit Arrangements or, where oral, written summaries of the material terms thereof, have been provided or made available to the Purchasers together with current and complete copies of all documents relating to the Employee Benefit Arrangements, including, without limitation, as applicable, (i) all documents establishing, creating or amending any Employee Benefit Arrangement; (ii) all trust agreements, insurance contracts and investment management agreements; (iii) all Form 5500 financial statements and accounting statements and reports, and investment reports for each of the last three (3) years and the three (3) most recent actuarial reports, if applicable (iv) all reports, returns, filings and material correspondence with any Government Authority in the last three (3) years; and (v) all booklets, summaries or manuals prepared for or circulated to, and written communications of a general nature to Employees concerning any Employee Benefit Arrangements. 6.6.3 Regulation All of the Vendors' Employee Benefit Arrangements to be assumed by US Purchaser are, and have been, operated in material compliance with their provisions and with all applicable laws including, without limitation, ERISA and the Code and the regulations and rulings thereunder. To the US Vendor's knowledge all fiduciaries of such Employee Benefit Arrangements have materially complied with the provisions of such Employee Benefit Arrangements to be assumed by the US Purchaser and with all applicable laws including ERISA and the Code and the regulations and rulings thereunder. All of the Canadian Vendor's Employee Benefit Arrangements are, and have been established, registered, qualified, administered and operated in material compliance with all applicable Canadian Laws. 101 105 6.6.4 Claims With respect to Employee Benefit Arrangements assumed by Purchasers, except as described in the Disclosure Letter, there are no pending actions, claims or lawsuits which have been asserted or instituted against any of the Employee Benefit Arrangements, the assets of any of the trusts under such Employee Benefits Arrangements, the sponsor, the administrator or against any fiduciary of any of the Employee Benefits Arrangement (other than routine benefit claims) nor does US Vendor and/or Canadian Vendor have knowledge of facts which could form the basis for any such action, claim or lawsuit. Except as described in the Disclosure Letter, there are no investigations or audits by any Government Authority of any of Employee Benefit Arrangements to be assumed by Purchasers, any trusts under such Arrangement, the sponsor, the administrator or any fiduciary of any of Employee Benefit Arrangements which have been threatened or instituted nor do US Vendor and/or Canadian Vendor have knowledge of facts which could form the basis for any such investigation or audit. No event has occurred respecting any Employee Benefit Plan of the Canadian Vendor which would entitle any person without the consent of the Canadian Vendor to wind-up or terminate, in whole or in part any such Employee Benefit Arrangement or which could reasonably be expected to adversely affect the Tax status thereof. 6.6.5 Contributions/Benefit Obligations All material obligations under the Employee Benefit Arrangements to be assumed by Purchasers (whether pursuant to the terms thereof or applicable law) have been satisfied, and there are no outstanding defaults or violations thereunder by the US Vendor or Canadian Vendor nor does either have any knowledge of any default or violation by any other party to any Employee Benefit Arrangements. All contributions or premiums required to be paid to or in respect of each Employee Benefit Arrangement to be assumed by Purchasers have been paid in a timely fashion in accordance with the terms thereof and all applicable law, and no Taxes, penalties or fees are owing or eligible under any Employee Benefit Arrangements. Except as noted in the Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due under any Employee Benefit Arrangement, (ii) increase any benefits otherwise payable under any Employee Benefit Arrangement, or (iii) result in the acceleration of the time of payment or vesting of any such benefits to any extent. Except as disclosed in the Disclosure Letter, no amendments to any Employee Benefit Arrangement of the Canadian Vendor has been made, nor have any improvements thereto been promised. 6.6.6 Funding Except as noted in the Disclosure Letter, all Employee Benefit Arrangements to be assumed by Purchasers are fully funded on an ongoing basis and on a termination basis with respect to any benefit obligation accrued as of the date of this Agreement. US Vendor maintains a reserve 102 106 adequate to satisfy timely claims made with respect to the Employee Benefit Arrangements that the US Purchaser is assuming, including, but not limited to, claims made under any Employee Benefit Arrangement which provides health and medical benefits for Employees and retired Employees. 6.6.7 Rights to Excess Assets/Reserves US Vendor has an unqualified right with respect to any assets under any Employee Benefit Arrangement assumed by the US Purchaser which exceed accrued benefit obligations under such Employee Benefit Arrangement. US Vendor shall have an unqualified right with respect to any unused reserves held with respect to any Employee Benefit Arrangement assumed by the US Purchaser. Neither US Vendor nor Canadian Vendor has pledged or otherwise encumbered any excess assets or reserves except to the extent specifically permitted in the documents governing the appropriate Employee Benefit Arrangement. The Canadian Vendor has not received, nor applied for, any payment of surplus out of any Canadian Employee Benefit Arrangement except in accordance with applicable law nor have there been any improper transfers of assets from any Canadian Employee Benefit Arrangement to any other Canadian Employee Benefit Arrangement or otherwise, and the Canadian Vendor is entitled under the terms thereof and under applicable law and regulatory policy to fund employer contribution obligations out of the assets of any Canadian Employee Benefit Arrangement. 7. INTENTIONALLY OMITTED 8. ASSETS AND LIABILITIES 8.1 TITLE 8.1.1 The US Vendor has good title to all of the US Assets and the Canadian Vendor has good title to all of the Canadian Assets, in each case other than Intangible Property and Real Property, free and clear of any Encumbrance, except for Encumbrances listed in Section 8.1.1 of the Disclosure Letter. The Acquired Assets constitute all of the assets that are necessary to conduct the Operations in substantially the same manner as such Operations are conducted as of the date hereof. 8.1.2 All Tangible Property of the Vendors is located at the offices or facilities of the Vendors, or the Vendors each have the full and unqualified right to require the return of any of its respective Tangible Property which is not located at its offices or facilities as soon as practical. The Acquired Assets other than Tangible Property are, where capable of possession, in the possession of or under the control of either Vendor, or either Vendor is entitled to take such possession or control as soon as practical. 8.2 INSURANCE The Disclosure Letter sets forth summary details of the insurances of the Vendors material to the Operations as on the date of this Agreement. 103 107 8.3 TANGIBLE PROPERTY All Tangible Property of the Vendors material to the Operations as currently conducted, wherever located, is in satisfactory working order, ordinary wear and tear excepted and having regard to the age of such Tangible Property, and have been properly maintained. 8.4 INTANGIBLE PROPERTY 8.4.1 The US Vendor or the Canadian Vendor owns or has the right to use pursuant to license, sublicense, agreement, or permission all Intangible Property which is necessary for the Operations as conducted. Subject to obtaining any Third Party Consents, each such item of Intangible Property (other than Software) owned or used by the US Vendor and Canadian Vendor immediately prior to Closing hereunder will be owned or available for use by the Purchasers on materially the same terms and conditions immediately subsequent to Closing hereunder, other than to the extent that the failure to own or use such Intellectual Property would not have a material adverse effect on the Operations or the financial condition or results of operations thereof. All fees regarding such Intangible Property due on or before Closing have been paid in full or are fully reserved on the Net Asset Statement. 8.4.2 (a) To the knowledge of the US Vendor and the Canadian Vendor, neither the US Vendor, the Canadian Vendor nor the Operations have interfered with, infringed upon or misappropriated any Intangible Property rights of third parties in any material respect. (b) Neither the US Vendor, nor the Canadian Vendor has knowledge of any facts or circumstances or has received any complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that the US Vendor or the Canadian Vendor must license or refrain from using any Intangible Property that is included on the Acquired Assets rights of any third party). To the knowledge of the US Vendor and the Canadian Vendor, no third party has interfered with, infringed upon, misappropriated, or otherwise come into conflict with any Intangible Property rights that are included in the Acquired Assets of the US Vendor or the Canadian Vendor in any material respect. 8.4.3 Schedule 15 of this agreement identifies: (a) each patent (including issuing country, number, current assignee of record, title and issue date), each trademark and service mark registration (including issuing country, number, description of mark, current owner of record, classes of goods or services, and issue date), each unregistered trademark and service mark that is material to the Operations for which no application for registration is pending (including a description of the mark and the goods or services with which it is used) and each copyright registration (including issuing country, number, title or description of work, current owner of record and issue date) currently in effect, owned by the US Vendor or the Canadian Vendor and included in the Acquired Assets. (b) each pending patent application (including country of filing, serial number, pending patent application (including country of filing, serial number, current owner of record, title and filing date), application for registration of a trademark or service mark (including country of filing, 104 108 serial number, description of mark, current owner of record, classes of goods or services, and filing date), which the US Vendor or Canadian Vendor has made with respect to any of their Intangible Property which is included in the Acquired Assets; and (c) identifies each material license, agreement, or other permission which the US Vendor or the Canadian Vendor has granted to any third party with respect to any of the owned Intangible Property that is included in the Acquired Assets (together with any exceptions). The US Vendor and the Canadian Vendor have made available to Purchaser correct and complete copies of all such patents, registrations, applications, permits, agreements and permissions (as amended to date). 8.4.4 With respect to each item of Intangible Property that the US Vendor or the Canadian Vendor owns and which is included in the Acquired Assets, except as otherwise set forth in Schedule 15: (a) the US Vendor or the Canadian Vendor possesses all right, title, and interest in and to the item, free and clear of any Encumbrance, license, or other restriction; (b) the item is not subject to any outstanding injunction, Judgment, order, decree, or ruling; (c) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand is pending or, to the knowledge of the US Vendor or the Canadian Vendor, is threatened which challenges the legality, validity, enforceability, use, or ownership of the item; and (d) the US Vendor and the Canadian Vendor have not agreed to indemnify any person for or against any interference infringement, misappropriation, or other conflict with respect to the item. 8.4.5(a) Schedule 15 identifies each item of Intangible Property that is included in the Acquired Assets and that is material to the Operations that any third party owns and that the US Vendor or the Canadian Vendor uses in the Operations pursuant to license, sublicense, agreement, or permission. The US Vendor and the Canadian Vendor have made available to the Purchaser correct and complete copies of all such licenses, sublicenses, agreements, and permissions (as amended to date). (b) With respect to each item of Intangible Property required to be identified in Schedule 15: (i) the Vendors are not in material breach or default under any such license, sublicense or agreement; (ii) to the knowledge of the US Vendor and the Canadian Vendor, no party to the license, sublicense, agreement, or permission is in material breach or default, 105 109 (iii) to the knowledge of the Vendors, no event has occurred which with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration thereunder; and (iv) the US Vendor and the Canadian Vendor have not granted any sublicense or similar right with respect to the license, sublicense, agreement, or permission. 8.4.6 The US Vendor and the Canadian Vendor shall execute Assignments of their respectively-owned Intangible Property in the form set forth in Exhibit A to Schedule 15. 8.5 INFORMATION TECHNOLOGY Details of procedures for Year 2000 compliance of the Information Technology are disclosed on the Disclosure Letter and such procedures disclose the actual status of the Vendors' efforts with respect to addressing any Year 2000 issue, including identifying any Information Technology that is Year 2000 capable. For the purposes of this Section 8.5.1, INFORMATION TECHNOLOGY means all computer systems, communications systems, software, computer hardware and other similar information technology used in connection with or required to carry on the business of either Vendor (as they relate to the Operations). 9. REAL PROPERTY In no event shall the Vendors or the Vendors' Guarantor be liable for a breach of a Warranty contained in this Section 9 in the event that it is shown that the factual circumstances or matters which (a) give rise to the claim for a breach of a Warranty would be shown in a commitment to issue title insurance prepared by a nationally recognized title insurance company or on an accurate survey of the property in question and (b) shall not materially adversely interfere with the use of the Real Property in question as it is currently used. 9.1 REAL PROPERTY The Real Property included in this transaction is set out in Schedule 1 and the particulars contained or referred to therein are true and correct. 9.2 TITLE The US Vendor or the Canadian Vendor, as the case may be, is the legal and beneficial owner or lessee, as the case may be, of the Real Property included in the Acquired Assets. 9.3 RIGHTS AND EASEMENTS All of the Vendor Owned Real Property has the benefit of such rights and easements which are necessary for the existing use of such Real Property. There are no easements which encroach upon any of the Improvements constructed or located on any of the Vendor Owned Real Property which materially adversely interfere with the Operations use of such Real Property. 106 110 The US Vendor and Canadian Vendor have such rights of entry and exit to and from the Real Property included in the Acquired Assets as are reasonably necessary to conduct their business upon such Real Property. 9.4 PERFORMANCE OF OBLIGATIONS AFFECTING THE REAL PROPERTY The US Vendor or the Canadian Vendor, as the case may be, has not received written notice of any material breach of any obligation, condition, restriction, agreement or statutory requirement affecting the Real Property included in the Acquired Assets, its occupation of such Real Property or the existing use thereof, and has no knowledge of any material breach of any obligation, condition, restriction, agreement or statutory requirement affecting such Real Property, its occupation of such Real Property or the existing use thereof. 9.5 DISPUTES AND NOTICES So far as the US Vendor or the Canadian Vendor, as the case may be, is aware, there are no outstanding disputes or notices, and neither Vendor has received written notices, of any outstanding disputes or notices affecting the Real Property included in the Acquired Assets which has or is reasonably likely to have a material adverse effect on the Operations conducted at such Real Property. 9.6 USE Neither the US Vendor nor the Canadian Vendor, as the case may be, has received written notice of, and the Vendors have no knowledge of any outstanding dispute as to the use of the Real Property included in the Acquired Assets or any current contravention of the relevant Laws (including, zoning, land use and planning Laws) or any alleged breach of applicable Laws which has or is reasonably likely to have a material adverse effect on the Operations carried out at such Real Property. 9.7 LEASES So far as either Vendor is aware: 9.7.1 there is no material breach of lease terms which are likely to adversely affect the business carried out at the Real Property included in the Acquired Assets; and 9.7.2 any principal rent payable in respect of the Real Property included in the Acquired Assets is not in the course of being reviewed other than on rent review terms provided in the relevant Lease and neither Vendor has received any written notice to the contrary. 9.8 PROPERTY SUBJECT TO OCCUPATIONAL INTERESTS There is no Vendor Owned Real Property which is subject to any lease or licence in favor of a third party. 107 111 9.9 REAL PROPERTY 9.9.1 None of the Vendor Owned Real Property, nor the ownership, possession, occupancy, maintenance or use thereof, is in violation of, or breach or default under, any Contract or Law, and no notice, work order, directive, or threat from any lessor, Governmental Authority or other Person has been received by the US Vendor or the Canadian Vendor, as the case may be, or served upon any such Real Property claiming any violation of, or breach, default or liability under, any Contract or Law, or requiring or calling attention to the need for any work, repairs, construction, alteration, installations or environmental remediation. 9.9.2 No casualty has occurred with respect to any of the Real Property included in the Acquired Assets within the last six (6) months which has had a material adverse effect on the use or operation of such Real Property. 9.9.3 To the knowledge of either Vendor, no proceedings are pending or threatened which would affect the zoning or use any of the Real Property included in the Acquired Assets. 9.9.4 All utilities, including water, gas, telephone, electricity, sanitary and storm sewers, are currently available to all of the Vendor Owned Real Property at normal and customary rates, and are adequate to serve such Real Property for each of the current operations and current use thereof by the US Vendor or the Canadian Company, as the case may be. 9.9.5 No person, firm, corporation or other entity, other than the US Vendor or the Canadian Vendor, as the case may be (or any Affiliate or Subsidiary thereof) has any right or option to acquire the Vendor Owned Real Property or any portion thereof which is owned by the US Vendor or the Canadian Vendor, as the case may be, or lease or occupy any portion thereof. 9.9.6 Neither Vendor has received written notice of any material breach of the applicable Vendor's obligations under any easements, covenants, reservations, restrictions or right-of-way agreements which affect the Vendor Owned Real Property. 9.9.7 Neither the US Vendor nor the Canadian Vendor, as the case may be, has received written notice from any Governmental Authority, any insurer, or any other party (i) that either the Real Property included in the Acquired Assets or the use or operation thereof is currently in violation of any Law and to the knowledge of the US Vendor or the Canadian Vendor, as the case may be, no such notice has been issued; (ii) that the US Vendor or the Canadian Vendor, as the case may be, is currently in violation or with the passage of time will be in violation of any Laws or the recommendations of any insurance carrier or board of fire underwriters affecting the Real Property included in the Acquired Assets or that any investigation has commenced or is contemplated regarding any such possible violation, or (iii) asserting that the US Vendor or the Canadian Vendor, as the case may be, is required to perform work at the Real Property included in the Acquired Assets and to our knowledge of the US Vendor or the Canadian Vendor, as the case may be, no such notices have been issued. 108 112 9.9.8 There are no persons other than the US Vendor or the Canadian Vendor, as the case may be, in possession of any portion of the Real Property included in the Acquired Assets or Improvements as lessees, tenants at sufferance or trespassers. 9.9.9 The leases described on Schedule 1 comprise all of the real property leases presently existing and each is in full force and effect as of date hereof in which the US Vendor or the Canadian Vendor, as the case may be, is a landlord or a tenant. None of the leases has been modified, altered, or amended in any respect, and neither the US Vendor nor the Canadian Vendor, as the case may be, has the right to cancel or terminate any lease, except as set forth in the Disclosure Letter. Neither the US Vendor nor the Canadian Vendor, as the case may be, has received any written notice that it is in default under any lease. Except as specified on Schedule 1, the US Vendor or the Canadian Vendor, as the case may be, is in possession of its respective premises. The US Vendor or the Canadian Vendor, as the case may be, does not have any offsets, defenses, claims or causes of actions against landlord arising out of matters occurring prior to Closing. Within ten (10) business days from the date of this Agreement, the US Vendor or the Canadian Vendor, as the case may be, shall request an estoppel certificate from the landlord thereof confirming, among other things that: (a) a true and correct copy of the lease is attached and that the Lease is in full force and effect, and has not been modified or amended in any respect whatsoever, except as specifically set forth; (b) the tenant is not in default under the lease; (c) the tenant has not prepaid any rent for a period of more than thirty (30) days from the date hereof; and (d) upon Closing, Landlord will and does hereby agree to recognize Purchaser as its tenant as successor to the tenant, said consent to be effective and self operative without the execution of any further instruments upon Purchaser's succeeding to the interest of tenant under the lease. The US Vendor or the Canadian Vendor, as the case may be, agrees: (x) to use commercially reasonable efforts to pursue, obtain and deliver such estoppel certificates to Purchaser on or prior to Closing and (y) to cooperate with Purchaser to permit Purchaser to participate in obtaining such certificates. 9.9.10 Neither the US Vendor nor the Canadian Vendor, as the case may be, shall take any action prior to Closing which would affect the current zoning classification of any of the Real Property included in the Acquired Assets. 9.9.11 Neither the air rights over the Vendor Owned Real Property nor any other "development rights" with respect to such Real Property have been assigned, transferred, leased or encumbered. 9.9.12 There are no property interests, buildings, structures, or other improvements that are owned or held by the US Vendor or the Canadian Vendor, as the case may be, and which are necessary or currently used for the Operations that are not being conveyed pursuant to the Agreement (e.g., adjacent parcels for parking, expansion, development and the like). 9.9.13 All accounts for work and services performed or materials placed or furnished upon or in respect of the construction and completion of any of the buildings, 109 113 improvements or other structures constructed on the Vendor Owned Real Property have been fully paid and no one is entitled to claim an Encumbrance under the Construction Lien Act (Ontario) or other similar legislation for such work performed by or on behalf of the Canadian Vendor, and neither Vendor has received any notification of and neither has knowledge of, any outstanding or incomplete work orders in respect of any of the buildings, improvements or other structures constructed on the Real Property included in the Acquired Assets. 9.9.14 Neither Vendor has any knowledge of any expropriation or condemnation or similar proceeding pending or threatened against the Real Property included in the Acquired Assets or any part of such Real Property. 9.9.15 Each of the US Vendor and the Canadian Vendor, as the case may be, has good, marketable and insurable legal title in fee simple absolute to all of the Vendor Owned Real Property, free and clear of any Encumbrance except current property taxes accrued but not yet due and payable, subject to such other exceptions as do not materially and adversely affect the operations conducted at such Real Property. 10. QUESTIONABLE PAYMENTS No current or former director, executive, officer, representative, agent or employee of either Vendor (when acting in such capacity or otherwise on behalf of either Vendor or any of their predecessors), has violated or is violating any provision of the Foreign Corrupt Practices Act of 1977. 11. COMPETITION ACT (CANADA) The Canadian Vendor, together with its affiliates, have assets in Canada that are less than $90 Million (Canadian) in aggregate value, determined as of such time and in such manner as is prescribed under the Competition Act (Canada) and its regulations and have gross revenues from sales in, from or into Canada, determined for such annual period and in such manner as is prescribed under such Act and its regulations, that are less than $155 Million (Canadian) in aggregate value. 110 114 SCHEDULE 9 WARRANTIES FROM THE PURCHASERS Knowing that the Vendors rely thereon the Purchasers jointly and severally represent and warrant to the Vendors as follows: 1. AUTHORITY AND CAPACITY 1.1 Each Purchaser and the Purchaser's Guarantor is a corporation duly incorporated and validly existing under its respective laws of incorporation. 1.2 Each Purchaser has the legal right and full power and authority to enter into and perform its obligations under this Agreement and any other agreement entered into pursuant to this Agreement and each such agreement when executed will constitute valid and binding obligations on the Purchaser, and/or each Relevant Purchaser (as the case may be) in accordance with their respective terms, subject to enforcement of remedies to applicable bankruptcy, insolvency, reorganization and similar laws generally affecting the enforcement of rights of contracting parties and to a court's discretionary authority with respect to the granting of a decree ordering specific performance or other equitable remedies. 1.3 The execution and delivery of, and the performance by each Purchaser of its respective obligations under, this Agreement and any other agreement entered into pursuant to this Agreement will not: (a) result in a violation of or default under any provision of the articles of incorporation and bylaws of either Purchaser; or (b) result in a breach of any Judgment to which either Purchaser is a party or by which either Purchaser is bound. 1.4 All corporate action required to be taken by each Purchaser validly and duly to authorize the execution and delivery of, and to exercise its rights and perform its obligations under, this Agreement and any other agreement entered into pursuant to this Agreement has been duly taken or will have been duly taken before Closing. 1.5 There are no proposals to terminate the employment of any Continuing Employees after the Closing, except those individuals identified in Schedule 11, 11A, 11B or 11C, or to materially vary or amend terms and conditions of employment of any Continuing Employee (whether to their detriment or benefit), except as may be required by law or as contemplated by this Agreement. This provision, however, is not and shall not be construed as a guarantee that Purchaser will not make changes to personnel subsequent to the Closing. 1.6 As at the date of this Agreement, no Senior Employee has given to Purchasers or has received from Purchasers a notice terminating his employment. 2. FINANCING 111 115 The Purchasers' Guarantor has entered into a definitive commitment letter and term sheet with The Chase Manhattan Bank and Chase Securities Inc. (collectively, CHASE), dated April 6, 1999, which, among other things, commits Chase to provide up to approximately $1,100,000,000 of senior secured financing (such commitment letter and term sheet, being the COMMITMENT). The Commitment has not been modified or amended in any respect (except as approved in writing by the Vendors' Guarantor) and is in full force and effect as of the date hereof and as of the Closing Date. Together with proceeds to be made available under the Commitment, the Purchasers' Guarantor has available, and will make available to each Purchaser and Relevant Purchaser (as defined in both the Agreement and the Non-North American Sale and Purchase Agreement), sufficient funds to pay the Purchase Price (as defined in both the Agreement and the Non-North American Sale and Purchase Agreement) and consummate the transactions contemplated pursuant to each such agreement in accordance with the terms and conditions thereof. Purchasers' Guarantor is not aware of any fact or circumstance which would prevent the financing described in the Commitment from being provided to the Purchaser. 3. COMPETITION ACT (CANADA) The Canadian Purchaser, together with its affiliates, have assets in Canada that are less than $150 million (Canadian) in aggregate value, determined as of such time and in such manner as prescribed under the Competition Act (Canada) and its regulations and have gross revenues from sales in, from or into Canada, determined for such annual period and in such manner as is prescribed under such Act and its regulations, that are less than $100 million (Canadian) in aggregate value. 112 116 SCHEDULE 10 PART 1 TRANSFER TAXES The Vendors shall pay, or procure payment of, all stamp and other transfer and registration Taxes and duties payable in respect of the sale and purchase of the Operations other than the costs of recording of the deeds and the related transfer taxes with respect to Real Property which shall be shared equally by the Vendors on the one hand and the Purchasers on the other hand. At the Closing, the Relevant Purchaser (to the extent that it is the appropriate party to execute such materials) shall execute and deliver to the Relevant Vendor exemption certificates as are reasonable and available at such time with respect to the Acquired Assets in a form that meets the legal requirements of any Governmental Authority in which such assets are located. The Vendors and Purchasers agree that prior to Closing they will in good faith attempt to reach an agreement regarding the value to be attributed to each parcel of Real Property which will be transferred under the Agreement. They further agree that in the event they are unable to reach such agreement with respect to any such parcel of Real Property, each such parcel as to which no agreement is reached will be deemed to have the value set forth below: Valuation of Real Property for Transfer Tax Purposes ----------------------------------------------------
UNITED STATES - ------------- Malvern, AR (pound)2,767,741 Willimantic, CT (pound)4,500,000 DuQuion, IL (pound)1,553,981 Indianapolis, IN (pound) 262,500 Marion, IN (pound) 763,791 S. Hadley, MA (pound)1,367,513 Jackson, TN (pound)3,380,625 Scottsville, TX (pound)8,422,616 CANADA - ------ La Malbaie, QU (pound) 731,250 St. Jerome, QU (pound)1,300,000 Trenton, ON (pound) 406,250
113 117 Moose Jaw, SAS (pound) 527,313
114 118 SCHEDULE 11 EMPLOYEES 1. EMPLOYEES COVERED BY COLLECTIVE BARGAINING AGREEMENTS 1.1 Effective at the Closing, the Purchasers shall (A) assume the obligations of the Vendors to the Employees who are represented by a labor union or organization and who are working under the terms of an applicable Collective Bargaining Agreement (UNION EMPLOYEES) and/or (B) accept the obligation to recognize and to bargain in good faith with the applicable labor unions or organizations to the extent required by law and (C) to make all Union Employees Continuing Employees. 1.2 Nothing in this Agreement provides any additional rights to the Union Employees, other than what already exists in their Collective Bargaining Agreements. 1.3 Vendors shall, prior to Closing, provide notice to all Union Employees of the transaction contemplated by this Agreement. Vendors will cooperate with Purchasers, including reasonable efforts prior to the Closing, to assist in the transition of labor relations, including, without limitation, meeting with Purchasers designated representatives to review applicable past practices and outstanding labor issues which may not appear in the applicable Collective Bargaining Agreements. 1.4 Vendors will fully comply with and comply to any and all obligations they have to bargaining with the labor union or organization which represents the Union Employees. 1.5 Nothing contained in this Agreement shall be interpreted as or explained to the Union Employees as a guarantee by Purchasers that after the Closing it will not affect the number of Union Employees at any facility or in the aggregate, or that Purchasers will not make changes to terms and conditions of employment, consistent with prevailing law. 1.6 Vendors shall discharge or provide on the Net Asset Statement all of their obligations to their former Union Employees, which were accrued prior to the Closing, regardless of whether they become Employees of Purchasers, including the payment of wages, salary, tax withholdings, bonuses, commissions, vacation or holiday pay or workers compensation or any other compensation except as provided in Schedule 12 of the Agreement. Payments relating to all Employment Benefit Arrangements shall be determined as stated in Schedule 12. 1.7 As soon as practicable after Closing, Vendors shall deliver to the Purchasers either originals or copies (if originals no longer exist or are not under the US Vendor's custody or control) of all records in relation to Taxes arising out of the employment relationship and of any other documents or records (including, but not limited to, personnel records and files) which are relevant to the Continuing Employees. 2. EMPLOYEES NOT COVERED BY A COLLECTIVE BARGAINING AGREEMENT 115 119 2.1 As of the Closing, Purchaser agrees to make all Employees of the US Vendor at Closing, except those who are specifically designated in the Employment Letter as Employees who will not be offered a position of employment with Purchaser, Continuing Employees. 2.2 Purchasers expressly reserve the right to make changes in personnel subsequent to the Closing, so long as these decisions are consistent with any pre-existing Employment Agreements between Vendors and their former Employees, which Purchaser has agreed to assume, and applicable law. 2.3 Nothing contained in this Agreement shall be interpreted as a guarantee by Purchasers that after the Closing they will not affect the number of Employees at any facility or in the aggregate, or that Purchasers will not make changes to terms and conditions of employment, consistent with prevailing law. 2.4 Vendors shall discharge all of their obligations to their former Employees, which were accrued prior to Closing, regardless of whether they become Continuing Employees, including the payment of wages, salary, tax withholdings, bonuses, commissions, vacation or holiday pay or any workers compensation or any other compensation except as provided in Schedule 12 of the Agreement. Payments relating to all Employment Benefit Arrangements shall be determined as stated in Schedule 12. 3. SPECIAL CONDITIONS FOR IDENTIFIED EMPLOYEES 3.1 Purchasers shall have no obligation to any Employee who is specifically identified in the Employment Letter as not receiving a position of employment with Purchasers and such Employees shall not become a Continuing Employees and Purchasers shall have no obligation to compensate or make any payment to such Employee arising from his employment with Vendors or any termination arising therefrom, except as provided in Schedule 12 of the Agreement. 3.2 Notwithstanding Paragraph 3.1 of Schedule 11, Purchasers may provide the Employees identified in the Employment Letter with positions with Purchasers as consultants for a period not to exceed three (3) months. The time period for performing consulting services may be extended, in the sole discretion of Purchasers, but such extensions must be in writing. Such Employees shall not become Continuing Employees and Purchasers shall have no obligation to compensate or make any payment to the Employees, other than for services provided during the three (3) month contract period or longer period if extended. 3.3 Subject to compliance with Section 5.3. of the Agreement, Purchasers shall have the right, at any time subsequent to signing this Agreement and prior to Closing, to meet with any Employee of US Vendor for the purpose of discussing possible terms and conditions of employment between any particular Employee and Purchasers. Such discussions shall not affect the terms of any existing contract or cause or impose or result in any liability on Purchasers, or on Vendors. 3.4 Subsequent to Closing modifications to any existing employment agreement between a Continuing Employee and Vendors may only be executed by a duly authorized representative of Purchasers, and may not impose any additional obligation or liability on Vendors 116 120 (including without limitation) under the individual employment contract or this Agreement. Purchaser fully reserves the right to make personnel decisions respecting these Continuing Employees. Such discussions shall not affect the terms of any existing contract or cause or impose any liability on Purchaser, or on Vendors. Vendors shall, upon reasonable notice from Purchasers, cooperate to facilitate these discussions. 4 ASSUMED LIABILITIES 4.1 Vendors shall calculate, as soon as practical following signing, the amount of legal entitlement and/or remuneration under the relevant individually negotiated employment contracts, side letters, and amendments, to those Employees listed in the Employment Letter who are specifically designated as receiving positions of employment (excluding any offered consulting positions) with Purchasers after Closing. Vendors will take due notice of Purchasers' reasonable representations with regard to the above-referenced calculations. Vendors will make available a pool of money to Purchasers in an amount equal to one-half of this amount to be used exclusively for the purpose of assisting Purchasers in convincing these designated Employees to accept employment with Purchasers. Vendors will pay Purchasers pursuant to this Paragraph 4.1 within five (5) days of receipt of evidence acceptable to Vendors that Purchasers have made a proper payment in accordance with the foregoing to the designated Employee. 4.2 Vendors shall also calculate, as soon as practical following signing, the amount of legal entitlements under all negotiated employment contracts, side letters, and amendments thereto potentially payable to those Employees listed in the Employment Letter as not receiving positions with the Purchasers. 4.3 Purchasers shall have the right to switch people between the lists in the Employment Letter but Vendors' total aggregate liability to Purchasers under Paragraph 4.1 of Schedule 11, and to the Employees who are not receiving positions with the Purchaser under their Employment Contracts under Paragraph 4.2 of Schedule 11 shall not increase as a result of such changes. 4.4 Any liability arising under the Workers Adjustment and Retraining Notification Act ("WARN") or any similar state, local or provincial law or regulation for events which arise on or after the Closing or resulting from the consummation of the transactions contemplated hereby shall be an Assumed Liability. 4.5 Purchaser shall assume the individual employment contracts of those Employees who are listed in the Employment Letter as receiving a position of employment with Purchaser. These individual employment contracts shall become Assumed Liabilities. 4.6 All workers' compensation claims and related expenses (including medical, legal and investigative) and hearing loss claims and related expenses (including medical, legal and investigative) arising prior to Closing are Excluded Liabilities. 117 121 SCHEDULE 12 EMPLOYEE BENEFIT ARRANGEMENTS 1. US EMPLOYEES 1.1 ASSUMPTION OF EMPLOYEE BENEFIT ARRANGEMENTS Except for the Employee Benefit Arrangements listed at Section 1.1.7 below, as of the Closing Date the US Purchaser hereby assumes sponsorship of all Employee Benefit Arrangements of the US Vendor listed in Schedule 12 of the Disclosure Letter, and all responsibilities, obligations and liabilities with respect to, or arising under, such Employee Benefit Arrangements, including liabilities in connection with those arrangements relating to current and former Employees of the US Vendor whether arising before or after the Closing Date, shall be Assumed Liabilities of the Purchaser. 1.1.1 With respect to the BICC Cables Corporation 401(k) Savings Plan (the 401(K) PLAN), prior to the assumption of the 401(k) Plan by the US Purchaser pursuant to Section 1.1, the US Vendor shall transfer the assets and liabilities of the 401(k) Plan attributable to the accrued benefits of those Employees who will remain employed at the corporate headquarters of the US Vendor (listed in the Disclosure Letter), in accordance with Sections 411(d)(6) and 414(l) of the Code, to a plan sponsored within the controlled group of the US Vendor prior to the Closing Date or as soon as practicable thereafter; 1.1.2 In connection with the US Purchaser's assumption of the BICC Relocation Loan Program, the US Purchaser agrees to accept transfer of all mortgages with respect to loans of all Continuing Employees of which the US Vendor is the mortgagee. In the event that a Continuing Employee with respect to whom a mortgage was transferred by the US Vendor to the US Purchaser is voluntarily or involuntarily terminated by the US Purchaser within 90 days of the Closing Date, the US Vendor agrees to purchase from the US Purchaser the mortgage held with respect to such Continuing Employee for an amount equal to the face amount of the outstanding principal and accrued interest under the mortgage. 1.1.3 In connection with the US Purchaser's assumption pursuant to Section 1.1 of the Medical Benefit Programs, including without limitation vision and dental (other than excluded arrangements at Section 1.1.7), collectively referred to herein as the "Medical Benefits Plan," the US Vendor shall cause the reserves for any claims for medical expenses incurred prior to the Closing Date to equal, as of the Closing Date, 29% of the total amount of medical expenses reimbursed pursuant to the Medical Benefits Plan with respect to the 1998 calendar year (the Reserve), against which US Purchaser shall on and after the Closing Date reimburse under the Medical Benefits Plan claims of individuals who were active or former Employees 118 122 of the US Vendor prior to Closing (excluding those described at Section 1.1.7) for medical expenses incurred prior to the Closing Date. The US Purchaser shall continue to maintain or shall secure policies comparable to, all stop loss policies currently in place with respect to all active and former Employees of the US Vendor. Only claims for reimbursement for medical services actually provided on a date prior to the Closing Date will be treated as "claims for medical expenses incurred prior to the Closing Date." The US Purchaser shall provide the US Vendor monthly with a report of all reimbursements for medical expenses incurred prior to the Closing Date by individuals who were active or former Employees of the US Vendor prior to the Closing Date with sufficient information to verify the date on which services were provided and the amount and the appropriateness of the reimbursement; the US Purchaser shall ensure that the US Vendor has at all times the right to audit the relevant third party administrator with respect to all such reimbursements. On the first anniversary of the Closing Date, the US Purchaser shall cause to be prepared and delivered to the US Vendor a reconciliation of the amount of the Reserve and all reimbursements for claims for medical expenses incurred prior to the Closing Date. In the event that the amount of the Reserve exceeds the total amount of all reimbursements for medical expenses incurred prior to the Closing Date by individuals who were active or former Employees of the US Vender prior to the Closing Date, the excess will be returned to the US Vendor. In the event that the Reserve (together with any reimbursements from relevant stop loss policies) is not sufficient to cover claims of individuals who were active or former Employees of the US Vendor prior to Closing Date for medical expenses incurred prior to the Closing Date, the US Vendor agrees to reimburse the US Purchaser for the shortfall. Notwithstanding the foregoing, the US Purchaser shall not pay, and the US Vendor shall in no event reimburse the US Purchaser for, any claims relating to the liabilities described at Section 1.1.7 for which the US Vendor remains responsible. 1.1.4 With respect to each Employee of the US Vendor whose employment with the US Vendor terminates on or prior to the Closing Date, and all of their relevant dependents (collectively the COBRA QUALIFIED BENEFICIARIES) the US Vendor shall provide any COBRA notice and election forms relating to continuation health care coverage provided under Part 6 of Title I of ERISA and Section 4980E of the Code, and further shall transmit to the US Purchaser any elections filed with the US Vendor (along with any related information) by any such person. In connection with the US Purchaser's assumption pursuant to this Section 1.1 of the Medical Benefit Plan, the US Purchaser shall assume (without limitation) responsibility for providing, to current and former Employees of the US Vendor, continuation healthcare coverage and the performance of all responsibilities in connection therewith including without limitation the payment of medical benefits. As of the date that is 18 months after the date of Closing, a reconciliation of all premiums 119 123 paid, stop loss payments and reimbursements of the COBRA Qualified Beneficiaries shall be performed. To the extent that, as of the date that is 18 months from the Closing Date, the total amount of (i) premiums paid to the US Purchaser after the Closing Date by COBRA Qualified Beneficiaries, plus (ii) reimbursements from all applicable stop loss policies, is less than (A) the total reimbursements paid by the US Purchaser for claims for medical services incurred after the Closing Date by COBRA Qualified Beneficiaries, plus (B) the per capita per month third party administrator fees and stop loss premiums attributable to COBRA Qualified Beneficiaries, an amount equal to the shortfall shall be transferred by the US Vendor to the US Purchaser. 1.1.5 The US Purchaser shall reimburse claims pursuant to paragraph 1.1.3 in accordance with the terms of the US Vendor's Medical Plan as in effect immediately prior to the Closing Date. (The US Purchaser reserves the right to amend US Vendor's medical plan prospectively, but such amendment shall in no event apply to claims incurred pre-closing). The US Purchaser shall reimburse claims pursuant to paragraph 1.1.4 strictly in accordance with the terms of the medical plans of the US Purchaser as in effect at the time the relevant claims are incurred and as applicable to all similarly situated employees. Although the US Purchaser (and its relevant agents) shall with respect to the medical plan and all participants thereunder have fiduciary responsibility for the grant or denial of all claims for benefits that are filed after the Closing Date, as between the US Vendor and the US Purchaser, at the time of reconciliation of all claims (described in paragraphs 1.1.3 and 1.1.4)) the US Vendor shall have the right to challenge the reconciliation, on any relevant basis, including without limitation, the amount or appropriateness of any claim granted. 1.1.6 The US Purchaser shall make payment (at the normal time in the normal manner) of any bonus or pro rata portion thereof, if any, to be treated as accrued by a Continuing Employee in the discretion of the US Vendor under (i) the BICC North American Management Incentive Compensation Plan; (ii) the Special Performance Award for Sales Group; (iii) the BICC Cables Corporation Marshall Texas Gain Share Plan; (iv) the Foreman's Incentive Bonus Plan; and (v) the BICC Cables Corporation Discretionary Bonus Plan attributable to the period ending on the Closing Date; provided, however, that the US Purchaser's total obligation under this Section 1.1.6 shall not exceed the dollar amount of reserves booked by US Vendor with respect to such programs including, to the extent applicable, related payroll taxes. US Vendor shall be responsible (as of the normal determination date under the foregoing arrangements) for determining the portion of such reserves if any, to be treated as accrued for a Continuing Employee for the period up to the Closing Date. US Purchaser shall make payment in strict accordance with the determination by US Vendor and shall not be responsible for confirming the veracity of such determination. In no event 120 124 shall the total amounts payable by US Purchaser to Continuing Employees under this paragraph 1.1.6 exceed the reserves booked with respect to such obligations. 1.1.7 The US Purchaser will not assume responsibility, obligations or liabilities relating to the following Employee Benefit Arrangements: (i) the BICC Cables Corporation Deferred Compensation Plan; (ii) the BICC Cables Corporation Supplemental Executive Retirement Plan; (iii) the BICC Phantom Stock Plan; (iv) the frozen Brintec Hourly Pension Plan; (v) the Brintec Supplemental Retirement Plan; and (vi) Miscellaneous one-on-one arrangements for post- termination or post-retirement medical benefits and post- termination or post-retirement life insurance benefits listed in the attached chart; (vii) Post-Retirement Life Insurance for Salaried Employees listed in attached chart; (viii) Medical Benefits and Life Insurance for Employees who became disabled prior to the Closing Date; (ix) Employment Agreements for Employees specifically designated in the Employment Letter, in final form as of the Closing Date, as not receiving positions with the Purchaser. 1.2 GENERAL CABLE SEVERANCE PLAN With respect to all Continuing Employees, the US Purchaser agrees to enroll such employees in the General Cable Severance Plan, and give credit for their service with the US Vendor and any member of its controlled group for purposes of calculating their benefits under the General Cable Severance Plan. The US Purchaser also agrees to maintain the General Cables Severance Plan with respect to Continuing Employees for a period of at least one year immediately following the Closing Date. 1.3 PLANS OF US PURCHASER The US Purchaser hereby agrees that each Continuing Employee as of the Closing Date shall be immediately eligible to participate in the US Purchaser's 121 125 Employee Benefit Arrangements on the same terms and conditions as similarly situated employees of the US Purchaser. 1.4 PAST SERVICE CREDIT To the extent applicable with respect to Employee Benefit Arrangements, maintained by the US Purchaser, Continuing Employees (and their eligible dependents) shall be given credit for their service with the US Vendor and any member of its controlled group (i) for purposes of eligibility to participate and vesting (but not benefit accrual except as described in Section 1.2); and (ii) for purposes of satisfying any waiting periods, evidence of insurability requirement, or the application of any pre-existing condition limitation. 1.5 INDEMNIFICATION The US Vendor shall indemnify the US Purchaser against all Losses incurred by the US Purchaser relating to or arising from (i) any action or inaction by the US Vendor prior to the Closing Date in breach of the law with respect to any Employee Benefit Arrangements assumed by the US Purchaser; or (ii) breach of any post-closing obligations of US Vendor under this Schedule 12. The US Purchaser shall indemnify the US Vendor against all Losses arising on or after the Closing Date relating to or arising from (i) any action or inaction in breach of the law of the US Purchaser in connection with those Employee Benefit Arrangements assumed by the US Purchaser pursuant to this Schedule 12 and (ii) breach of any post-closing obligations of the Purchaser under this Schedule 12. 2. CANADIAN EMPLOYEES 2.1 SALARIED PLAN (a) The Canadian Purchaser shall adopt or amend, effective as of the Closing, a pension plan and related fund (the CANADIAN PURCHASER'S PENSION PLAN) which shall cover all the Transferred Salaried Employees. The Canadian Purchaser's Pension Plan as adopted and the benefits provided thereunder shall be substantially the same in the aggregate as the Salaried Plan. The Canadian Purchaser shall provide a registered pension plan for the Transferred Salaried Employees for a period of not less than 2 years after the Closing. (b) The Canadian Purchaser's Pension Plan shall provide for (i) accrued benefits, based on pensionable earnings and service as of the Closing, for each Transferred Salaried Employee's defined benefits under the Salaried Plan, and (ii) accrued benefits, based on each Transferred Salaried Employee's defined contribution account balance as of the Closing, for such Transferred Salaried Employee's defined contribution benefits under the Salaried Plan (such defined benefit accrued benefits and defined contribution accrued benefits shall be referred to herein as the DB BENEFITS and the DC BENEFITS, respectively). Subject to applicable law, the DB Benefits and DC Benefits shall be determined in accordance with the provisions of the Salaried Plan. (c)(i) The Canadian Vendor shall cause the transfer to the pension fund for the Canadian Purchaser's Pension Plan of a pro rata portion of assets (the DB TRANSFERRED 122 126 AMOUNT) from the Salaried Plan funding media (the SALARIED TRUST), such that the DB Transferred Amount bears the same ratio to the total assets of the Salaried Plan as the going concern actuarial liabilities of the Salaried Plan relating to the DB Benefits as of the Closing, determined in accordance with the summary of actuarial methods and assumptions annexed hereto as Appendix 2.1(c)(i), applied in accordance with generally accepted Canadian actuarial principles and all applicable laws, as certified by William M. Mercer Limited (CSA), actuaries for the Salaried Plan bears to the total defined benefit going concern actuarial liabilities of the Salaried Plan, determined on the same basis. The Canadian Vendor shall make the details of these calculations and their results, including individual results by plan member, available to the Canadian Purchaser and its actuary (the CPA) within 45 days after Closing for their review and confirmation, and shall furnish to them such other information and data, as may reasonably be required or requested to permit a review, recalculation and confirmation of the DB Transferred Amount, by the Canadian Purchaser and the CPA. The Canadian Purchaser shall notify the Canadian Vendor within thirty (30) days of receiving such information and data as to its agreement or disagreement with the Canadian Vendor's calculation of the DB Transferred Amount. Any dispute with respect to such amount or payment shall be resolved pursuant to Section 2.3 of this Schedule 12. (ii) On Closing, the Canadian Vendor shall pay to the Canadian Purchaser an amount equal to the difference between the DB Transferred Amount (as estimated by CSA on the basis set forth in Section 2.1(c)(i) above) and the amount necessary to ensure that as of the Closing Date, all of the DB Liabilities are fully funded on a going concern basis (as estimated by CSA on the basis set forth in Section 2.1(c)(i) above). As soon as practicable, but in any event within thirty (30) days after final agreement is reached between the Canadian Vendor and the Canadian Purchaser with respect to the amount of the DB Transferred Amount, the amount of the payment pursuant to this Section shall be adjusted based on a full actuarial valuation of the Salaried Plan and the actual status of the Salaried Plan as of Closing, in the manner set forth in Section 2.1(c)(i) above. (iii) If the Superintendent of Financial Services of Ontario (the SUPERINTENDENT ) requires an amount other than the DB Transferred Amount to be transferred (the DB REGULATORY AMOUNT ), the parties agree that the DB Regulatory Amount shall be the DB TRANSFERRED AMOUNT hereunder, subject to any rights of appeal. In addition to the adjustments contemplated by Section 2.1(c)(ii) above, if the DB Transferred Amount (before adjustment pursuant to the preceding sentence) is greater than the DB Regulatory Amount, the Canadian Vendor shall pay the amount of such difference to the Canadian Purchaser; if the DB Transferred Amount (before adjustment pursuant to the preceding sentence) is less than the DB Regulatory Amount, the Canadian Purchaser shall pay the amount of such difference to the Canadian Vendor, such payment to be made in either case on the date specified in Section 2.1(f) of this Schedule 12. 123 127 (iv) Subject to all applicable regulatory approvals, the Canadian Vendor shall cause the transfer to the funding agent for the Canadian Purchaser's Pension Plan (the CANADIAN PURCHASER'S TRUST) from the Salaried Trust of each Transferred Salaried Employee's DC Benefit account balance (the DC TRANSFERRED AMOUNT) as at the date such transfer is completed in accordance with the terms of the Salaried Plan. Such transfer shall be made at the time set forth in Section 2.1(f) of this Schedule 12. (d) The Canadian Purchaser shall file an application for registration of the Canadian Purchaser's Pension Plan or amendment thereof, and the Canadian Vendor shall file applications for approval of the transfer of funds from the Salaried Trust into the Canadian Purchaser's Trust contemplated hereunder, in each case with the Superintendent, any other applicable pension regulatory authority and Revenue Canada. The Canadian Purchaser and Canadian Vendor shall diligently pursue their respective applications. The Canadian Vendor shall diligently cooperate with the Canadian Purchaser by amending the Salaried Plan and filing or otherwise providing to the Canadian Purchaser any information required with respect thereto and otherwise cooperate with the Canadian Purchaser to the extent necessary to allow the Canadian Purchaser to effect the registration of the Canadian Purchaser's Pension Plan or amendment thereof. (e) The Canadian Vendor shall, on behalf of the Canadian Purchaser's Pension Plan and the Canadian Purchaser's Trust but out of the Salaried Plan and the Salaried Trust, pay or cause to be paid all benefits accrued to the Closing and payable under the Canadian Purchaser's Pension Plan and Canadian Purchaser's Trust with respect to the Transferred Salaried Employees until the completion of the transfer of funds to the Canadian Purchaser's Pension Plan and Canadian Purchaser's Trust as contemplated herein. (f) On the last day on which banks in Toronto are open for regular banking business of the month in which the approval for the transfer of assets contemplated in Section 2.1(d) of this Schedule 12 is received or so soon thereafter as is practicable (the TRANSFER DATE), the Canadian Vendor shall cause to be transferred from the Salaried Trust to the Canadian Purchaser's Trust, cash or assets with a value equal to the DB Transferred Amount and the DC Transferred Amount. An amount equal to the pro rata share attributed by the Canadian Vendor, acting reasonably, to the DB Transferred Amount of investment gains or losses shall be added to or deducted (as applicable) from the DB Transferred Amount from the amount to be transferred from the Salaried Trust to the Canadian Purchaser's Trust hereunder, and there shall be deducted from the DB Transferred Amount (i) the amount of any expenses payable and not otherwise paid by the Canadian Purchaser in accordance with Section 2.1(g) of this Schedule 12, and (ii) the amount of any DB Benefits paid to Transferred Salaried Employees out of the Salaried Plan and Salaried Trust during such period in accordance with Section 2.1(e) of this Schedule 12. There shall be deducted from the DC Transferred Amount (i) the amount of any expenses paid in accordance with Section 2.1(g) of this Schedule 12, and (ii) the amount of any DC 124 128 Benefits paid to Transferred Salaried Employees out of the Salaried Plan and Salaried Trust during such period in accordance with Section 2.1(e) of this Schedule 12. (g) The Canadian Vendor shall provide the Canadian Purchaser such information and reports as Canadian Purchaser may reasonably require in order to administer the Canadian Purchaser's Pension Plan in respect of the Transferred Salaried Employees. Canadian Purchaser shall pay the reasonable costs and expenses necessary to provide such information and reports, by deducting these amounts from the DB Transferred Amount and the DC Transferred Amount or otherwise paying such amounts to the Canadian Vendor. 2.2 HOURLY PENSION PLANS WITH RESPECT TO TRENTON, ST-JEROME AND LA MALBAIE LOCATIONS (a) Effective on Closing, the Canadian Vendor shall assign to the Canadian Purchaser, and the Canadian Purchaser shall assume, the sponsorship and administration of, and all rights and obligations of the Canadian Vendor under, the Hourly Pension Plans and the Hourly Trust Agreements, with the effect that following the Closing, the Canadian Purchaser will be the administrator and sponsor of the Hourly Pension Plans and related pension funds in place of the Canadian Vendor, and the Canadian Vendor shall be relieved of all further obligations in respect of the Hourly Pension Plans and the Hourly Trust Agreements. The Canadian Vendor and the Canadian Purchaser shall cooperate in making such amendments to the Hourly Pension Plans and making such filings with Revenue Canada and the pension benefits regulatory authorities applicable to the Hourly Pension Plans are entering into such arrangements with the trustees of the Hourly Pension Plans, in each case as may be necessary or desirable to effect the assignment and assumption contemplated by this Section 2.2 of this Schedule 12. The Canadian Purchaser shall become the administrator of the Hourly Pension Plans only upon the assignment to the Canadian Purchaser by the Canadian Vendor of the rights and obligations of the Canadian Vendor under the Hourly Trust Agreements, including, without limitation, all of the Canadian Vendor's rights in respect of the assets held in each of the Hourly Trust Agreements, except that, with effect from the Closing Date, the Canadian Purchaser shall administer each of the Hourly Plans as agent for the Canadian Vendor. (b) On Closing, the Canadian Vendor shall pay to the Canadian Purchaser an amount equal to the difference between the value of assets in the Hourly Plans as of the Closing Date (as estimated by CSA) and the amount necessary to ensure that, as of the Closing Date, all of the liabilities of the Hourly Plans are fully funded on a going concern basis (as estimated by CSA on the basis set forth below). As soon as practicable, and in any event within thirty (30) days after the Closing Date, the Canadian Vendor shall update the pension records of all of the members of the Hourly Pension Plans up to the Closing Date, and shall determine, within forty-five (45) days after the Closing Date, the estimated going concern liabilities for each of the LaMalbaie Plan (the LAMALBAIE PLAN LIABILITIES), the St. Jerome Plan (the ST. 125 129 JEROME PLAN LIABILITIES) and the Pyrotenax Plan (the PYROTENAX PLAN LIABILITIES, all calculated in accordance with the actuarial methods and assumptions set out in Appendix 2.1(c)(i) applied in accordance with generally accepted Canadian actuarial principles and all Applicable Laws and shall determine the estimated value of the assets of each of the La Malbaie Plan (the LA MALBAIE PLAN ASSETS), the St. Jerome Plan (the ST. JEROME PLAN ASSETS) and the Pyrotenax Plan (the PYROTENAX PLAN ASSETS). The Canadian Vendor shall make the details of these calculations and their results, including individual results by plan member, available to the Canadian Purchaser and the CPA for their review and confirmation, and shall furnish to them such other information and data, as may reasonably be required or requested to permit a review, recalculation and confirmation of the LaMalbaie Plan Liabilities, the St. Jerome Plan Liabilities and the Pyrotenax Plan Liabilities, as well as the LaMalbaie Plan Assets, the St. Jerome Plan Assets and the Pyrotenax Assets. The Canadian Purchaser shall notify the Canadian Vendor within thirty (30) days of receiving such information and data as to its agreement or disagreement with the Canadian Vendor's calculation of the LaMalbaie Plan Liabilities, the St. Jerome Plan Liabilities and the Pyrotenax Plan Liabilities, as well as the LaMalbaie Plan Assets, the St. Jerome Plan Assets and the Pyrotenax Assets. Any dispute shall be resolved pursuant to Section 2.3 of this Schedule 12. (c) As soon as practicable, but in any event within thirty (30) days after final agreement is reached between the Canadian Vendor and the Canadian Purchaser with respect to the amount of the LaMalbaie Plan Liabilities, the St. Jerome Plan Liabilities and the Pyrotenax Plan Liabilities, as well as the LaMalbaie Plan Assets, the St. Jerome Plan Assets and the Pyrotenax Assets, the Canadian Vendor shall pay to the Canadian Purchaser an amount equal to the amount necessary to ensure that, as at the Closing Date, all of the Hourly Pension Plans are fully funded on an ongoing basis, on the basis set forth in Appendix 2.1(c)(i). (d) The Canadian Purchaser (as agent for the Canadian Vendor) agrees to administer the Hourly Pension Plans until the date on which the rights and obligations of the Canadian Vendor under each of the Hourly Pension Plans and associated trust agreements, including all of the Canadian Vendor's rights in respect of the assets held in the trust funds, are assigned to the Canadian Purchaser (the HOURLY PENSION PLAN ASSIGNMENT DATE) in the same manner as it is being administered at the Closing Date but for the account of, and at the expense of, either the trust fund for the applicable Hourly Plan (subject to any Applicable Law) or, where such charge to the trust fund is not permitted by Applicable Law, the Canadian Purchaser. Until the Hourly Pension Plans Assignment Date and subject to any other agreements between the Canadian Vendor and the Canadian Purchaser, the Canadian Purchaser (as agent of the Canadian Vendor) shall receive and deposit contributions, if any, by the Canadian Purchaser and the participants in the Hourly Plans to the trust funds therefor. Until the Hourly Pension Plans Assignment Date, the assets held in the trust funds for the Hourly Plans shall be invested under the supervision of the Canadian Purchaser (as agent of the Canadian Vendor), by the 126 130 trustee of the trust fund for each of the Hourly Plans, who will act with reasonable diligence and prudence and in good faith in so doing. (e) As soon as practicable after the Closing Date, the Canadian Vendor shall provide to the Canadian Purchaser such information and records, and access to such personnel, as may reasonably be required to administer the Hourly Plans, to the extent that such information and records are not then in the possession of the Canadian Purchaser or any of its authorized representatives. (f) All statutory and regulatory administration reporting, filing and disclosure requirements applicable to the Hourly Pension Plans in respect of the plan years ending prior to the Closing Date shall remain the responsibility of the Canadian Vendor, and all such requirements applicable in respect of plan years ending on or after the Closing Date shall be the responsibility of the Canadian Purchaser. 2.3 DISPUTE RESOLUTION If CSA and CPA are unable to agree on the DB Transferred Amount, or the Canadian Purchaser and the Canadian Vendor are unable to agree on any amount or calculation pursuant to Sections 2.1 or 2.2 of this Schedule 12, their differences shall be resolved by a third independent actuary selected by CSA and CPA, and the expense of such independent actuary shall be paid one half by the Canadian Vendor and one half by the Canadian Purchaser. In certifying , verifying or reviewing the DB Transferred Amount or the amounts payable pursuant to Sections 2.1(c)(ii) and 2.2(c) of this Schedule 12, the actuaries referred to herein shall have no responsibility, obligation or right to change the methods, assumptions or any other term or condition of the summary of actuarial methods and assumptions annexed hereto as Appendix 2.1(c)(i), it being understood and agreed that the duties requested of such actuaries shall be solely to calculate and otherwise determine such amounts in a manner consistent with Appendix 2.1(c)(i), this Schedule 12, generally accepted Canadian actuarial principles and all applicable law. 2.4 BENEFIT PLANS FOR TRANSFERRED EMPLOYEES With effect from the Closing Date, the Canadian Purchaser shall establish or otherwise provide benefit plans for the Transferred Employees consisting of life insurance, medical, dental, accident, disability and other benefits that are substantially similar, in the aggregate, to those offered as of the Closing by the Canadian Vendor to the Transferred Employees and all eligible persons claiming through them. The Canadian Vendor shall remain liable for all obligations for claims in respect of which the event giving rise to the claim occurred prior to the Closing Date. 2.5 GROUP RRSP - TRANSFERRED EMPLOYEES With effect from the Closing Date, the Canadian Purchaser shall establish or otherwise provide a group registered retirement savings plan upon substantially similar terms, in the aggregate, to the BICC Group RRSP. 127 131 2.6 COMPLIANCE WITH COLLECTIVE AGREEMENTS The Canadian Purchaser shall ensure that all pension and benefits arrangements established or maintained by it comply with the terms of each applicable collective agreement affecting the Transferred Employees and the Former Employees - Continuing Operations. 2.7 CONTINUOUS SERVICE For the purposes of the Canadian Purchaser's Plans, service of a Transferred Employee with the Canadian Vendor and membership in any of the Canadian Vendor's Plans shall be deemed to be service with the Canadian Purchaser and membership in the corresponding Canadian Purchaser's Plan and as if the Canadian Purchaser's Plans were continuations of the Canadian Vendor's Plans. 2.8 NO ASSUMPTION OF LIABILITIES The Canadian Vendor and the Canadian Purchaser agree and confirm that the Canadian Purchaser is not assuming nor will it have any liability for; any Employee Benefit Arrangement of the Canadian Vendor unless expressly set forth in this Schedule 12. 2.9 TRANSFERRED EMPLOYEES PERFORMING SERVICES FOR THE CANADIAN VENDOR The Canadian Purchaser shall make available to the Canadian Vendor the services of the Transferred Employees named in Appendix 2.9. The Canadian Vendor and the Canadian Purchaser will enter into a services contract relating to such employees pursuant to which the Canadian Vendor will agree to reimburse the Canadian Purchaser for the salary and all pension and non-pension benefits paid and any other reasonable expenses incurred by the Canadian Purchaser with respect to such employees on similar terms to those currently applicable to such persons, together with applicable taxes. 2.10 RELATED DEFINITIONS For the purpose of this Section 2 of this Schedule 12, the terms set forth below shall have the meanings specified below. Canadian Purchaser's Plans: the pension and benefit plans and arrangements required to be established or maintained by the Canadian Purchaser pursuant to Section 2 of this Schedule 12. Canadian Vendor's Plans: the Employee Benefit Arrangements in which the Canadian Vendor has entered into, participate, or has liability for. Former Employee: each person who (a) at any time prior to the Closing Date was an employee of the Canadian Vendor, and (b) remains entitled as of the
128 132 Closing Date to any benefits under the Canadian Vendor's Plans in respect of his or her employment with the Canadian Vendor. Hourly Pension Plans: The Pension Plan for Hourly Paid Employees of BICC Cables Canada Inc. at its St. Jerome Factory (Quebec Registration No. 25587), Pension Plan for Hourly Employees of Pyrotenax of Canada Limited, a Division of BICC Cables Canada Inc. (FSCO Registration No. 05211406) and Pension Plan for Unionized Employees of BICC Cables Canada Inc. located at LaMalbaie Quebec (Quebec Registration No. 31236). Hourly Trust Agreements: the trust agreements relating to the pension funds for the Hourly Pension Plans. Salaried Plan: The Employees' Pension Plan of BICC Cables Canada Inc. (FSCO Registration No. 0293761). Transferred Employee: those employees of the Canadian Vendor who will continue as employees of the Canadian Purchaser after Closing but, for greater certainty, does not include any Former Employee. Transferred Salaried Employee: each Transferred Employee who as of the Closing Date is a member of or is satisfying the criteria for membership of the Salaried Plan, and each Former Employee or Employee who is not a Transferred Employee but who as of the Closing Date is a member or former member of or is satisfying the criteria for membership of the defined contribution portion of the Salaried Plan.
129 133 Appendix 2.9 to Schedule 12 Mary Freeman Deborah Wisteand Stephanie De Lauretis Mike Taylor Danuta Dworaczek 130 134 APPENDIX 2.1(c)(i) ------------------ TO SCHEDULE 12 BICC CABLES CANADA INC. SUMMARY OF ACTUARIAL ASSUMPTIONS FOR FUNDING PURPOSES AS AT APRIL 6, 1999
ACTUARIAL PLAN ASSUMPTIONS -------------------------------------------------------------------------------------- (PROVINCIAL EMPLOYEES ST. JEROME PYROTENAX LA MALBAIE REGISTRATION) (ONTARIO) HOURLY HOURLY (QUEBEC) (QUEBEC) (ONTARIO) - -------------------------------------------------------------------------------------------------------------------------- GOING CONCERN BASIS - -------------------------------------------------------------------------------------------------------------------------- ECONOMIC ASSUMPTIONS: - -------------------------------------------------------------------------------------------------------------------------- - - Investment Return 7.5% 7.5% 7.5% 7.5% - - Increase in 7.0% None None None Earnings - - Increase in YMPE 6.5% None None None - - Expenses None None None None - - Increase in None None None None Revenue Canada Maximum - - Indexing None None None None - -------------------------------------------------------------------------------------------------------------------------- DEMOGRAPHIC ASSUMPTIONS: - -------------------------------------------------------------------------------------------------------------------------- - - Retirement Age - 50% retire at 25% at min. age 25% at min. Age 63 age 63 and of entitlement to age of 50% retire at an unreduced entitlement to age 64 pension and an unreduced 75% at age 65 pension and - Executives 75% at age 65 retire at age 62 - - Termination Ontario Light Ontario Light Ontario Light Ontario Light truncated at truncated at truncated at truncated at age 55 age 56 age 55 age 55 - - Morality GAM83 GAM83 GAM83 GAM83
131 135
ACTUARIAL PLAN ASSUMPTIONS -------------------------------------------------------------------------------------- (PROVINCIAL EMPLOYEES ST. JEROME PYROTENAX LA MALBAIE REGISTRATION) (ONTARIO) HOURLY HOURLY (QUEBEC) (QUEBEC) (ONTARIO) - -------------------------------------------------------------------------------------------------------------------------- - - Disability None except that None None None current disabled members assumed not to return to actives - - Family 100% of plan None None None Composition members are married and male partner is 3 years older than female - -------------------------------------------------------------------------------------------------------------------------- SOLVENCY BASIS - -------------------------------------------------------------------------------------------------------------------------- - - Investment Return 5.75% for 15 years, 6% thereafter for March 99 valuation - - Increases in Earnings None - -------------------------------------------------------------------------------------------------------------------------- Otherwise as above except as required by specified provincial pension legislation. - --------------------------------------------------------------------------------------------------------------------------
132 136 SCHEDULE 13 [INTENTIONALLY LEFT BLANK] 133 137 SCHEDULE 14 [INTENTIONALLY LEFT BLANK] 134 138 SCHEDULE 15 INTELLECTUAL PROPERTY 135 139 The Vendors' Intellectual Property is being sold, transferred and assigned pursuant to the Assets Sale and Purchase Agreement, dated April 6, 1999, and such sale, transfer and assignment is subject to the provisions of the license agreements to which the Vendors or either of them is a party. List of patents, registered designs and registered trade marks and applications therefor
Status (Reg/ Application Title Country Pending) Number Title Holder of Record - ---------------------------- ---------------------- --------------------------- ------------------- ------------------------ Low-ash Blacks CA Pending BICC Cables Corporation US Pending 08/217116 BICC Cables Corporation Metallic constant watt BR Granted 8700141 Pyrotenax of Canada Ltd. CA Granted 527383 Pyrotenax of Canada Ltd. FR Granted 8700406 Pyrotenax of Canada Ltd. GB Granted 8700888 Pyrotenax of Canada Ltd. US Granted 06/946761 Pyrotenax of Canada Ltd. ARMORKOTE US Registered 74/099682 BICC Cables Corporation CABLEC US Registered 73/524225 BICC Cables Corporation CDC US Registered 72/164557 BICC Cables Corporation CONOPTICS US Registered 71/299827 BICC Cables Corporation DURALOX US Registered 72/021357 BICC Cables Corporation DURASHEATH US Registered 71/612941 BICC Cables Corporation FLAME-GUARD US Registered 73/026995 BICC Cables Corporation HOT SPOT US Registered 74/142400 BICC Cables Corporation Cablec Continental Cables INTEGRAFLAME US Registered 73/794406 Corporation LOOSE PACK US Registered 74/299830 BICC Cables Corporation ACID FLAMECHECK & design US Registered 73/579401 Phillips Cables Ltd. PLENUM FLEX 90 US Registered 74/276207 BICC Cables Corporation ARCTIC-FLEX US Registered 74/664828 BICC Cables Corporation POLYRAD US Registered 73/066819 BICC Cables Corporation PPP US Registered 73/564594 BICC Cables Corporation PRECON US Registered 72/352665 BICC Cables Corporation STRANDFILL US Registered 73/547526 BICC Cables Corporation T-2 US Registered 73/268684 BICC Cables Corporation THRMOLENE US Registered 72/164556 BICC Cables Corporation UNI BLEND US Registered 72/150841 BICC Cables Corporation UNICON US Registered 70/218170 BICC Cables Corporation UNISHIELD US Registered 72/333516 BICC Cables Corporation ACID-FLAME-CHECK CA Registered 546613 BICC Phillips Inc. CARQUAD CA Registered 351153 BICC Phillips Inc. CELSEAL CA Registered 357092 BICC Phillips Inc. DEVILEAD CA Registered 585076 BICC Phillips Inc. DEVILEAD US Registered 73/697713 Philips Cables Ltd. DEVILENE US Registered 73/697712 Philips Cables Ltd. DEVILENE CA Registered 585075 BICC Phillips Inc. DEVILENE US Registered 73/716226 Philips Cables Ltd. DEVILENE FR Registered 929456 Philips Cables Ltd. DEVILENE CA Registered 397207 BICC Phillips Inc. EPD CA Registered 679929 BICC Phillips Inc.
136 140
- -------------------------- ---------------------- ------------------- --------------------- --------------------------------- Status (Reg/ Application Title Country Pending) Number Title Holder of Record - -------------------------- ---------------------- ------------------- --------------------- --------------------------------- EPN CA Registered 679933 BICC Phillips Inc. FLAMBICC CA Registered TMA602049 BICC Cables Corporation FLEXFORM CA Registered 358936 BICC Phillips Inc. NORAL-AC CA Registered 143839 BICC Phillips Inc. NORFLAME CA Registered 394208 BICC Phillips Inc. PHILLIPS ACID FLAMECHECK US Registered 73/633111 Philips Cables Ltd. PHILLIPS CABLES US Registered 74/996026 Philips Cables Ltd. PHILPLEX CA Registered 253944 BICC Phillips Inc. PHILSHEATH US Registered 73/1572491 Philips Cables Ltd. PHILSYM CA Registered 351151 BICC Phillips Inc. PORTAFLEX CA Registered 511037 BICC Phillips Inc. REELFREE and design CA Registered 504934 BICC Phillips Inc. STALCELL CA Registered 351152 BICC Phillips Inc. STANDFILL CA Pending 775735 BICC Cables Corporation THERMALENE CA Registered 329871 BICC Phillips Inc. VERTITECK US Registered 73/622383 Phillips Cables Limited VERTITECK CA Registered 560038 BICC Phillips Inc. PORTAFLEX PLUS CA Registered 725957 BICC Phillips Inc. PY-TRACE CA Registered 532311 BICC Cables Canada Inc. PYROPAK CA Registered 242249 Pyrotenax of Canada Ltd. PYROTRACE CA Registered 468279 BICC Cables Canada Inc. SLOT-LOK CA Registered 350461 Pyrotenax of Canada Ltd. PYROTRACE US Registered 73/342608 Pyrotenax USA Ltd.
Licenses of Vendors' Intangible Intellectual Property and Vendors' Know-How
Other Party Subject Agreement Type - ----------- ------- -------------- BP Chemicals Ltd. Dual Layer Strippable Screens Licence Agreement General Electric Company Insulated Power and Control Technology and Patent Licence Cables Agreements Essex Group Inc. Transmission, Distribution and Licence Agreement Control Cables BP Performance Polymers, Inc. Water Tree Retardant XPLE Sublicence Agreement Compound Dow Chemical Company Medium Voltage Cable Collaboration Agreement Insulation BICC Plc/Cablec Corporation Joint Research Technical Collaboration Agreement
137 141 Material computer software license agreements (excluding shrink-wrap licenses) Vendors - ------- Axiox Candle (03611) Omegamon/CICS Omegamon/MVS Client Soft Pilot Comet/CICS (Techologic) Computer Associates (01236) Corporate Tie CJB's group Compu Ware (03277) XPEDITRER/CICS File Aid Corporate Software & Tech. Decision One Corp. Design Consultants, Inc. Geac Computer Systems AMAPS A/P A/R O/P IBM (52422) Information Access Computer Select Library Innovation FDR/ABR/COMPAKTOR Intel Levi, Ray, Shoup, Inc. (03744) VTAM Printer VMCF/VTAM Mac Kinney Systems (04112) Microsoft Select/Office 97 Monarch Bay Software, Inc. Professional Network Services Scheduling (00157) OPT Software Maintenance Sterling DYI/280 Support Magic Syncsort, Inc. (00525) Syncsort MVS Sysdata (00630) Mufmon Taxware International (00166) Technologic Software Vanguard 138 142
Other Material Intellectual Property Agreements Other Party Title Type Unit - ----------- ----- ---- ---- Cabot Corporation Carbon Blacks Collaboration BICC Cables Agreement Corporation BP Performance Sheathing Materials Secrecy Agreement BICC Cables Polymers Inc. Corporation Polytechnic University Halogen Free Low Fire Sponsored BICC Cables of Brooklyn Hazard Cable Development Work Corporation, Agreement Indianapolis Technical Center Sheffield University Bonding of Different Sponsored BICC Cables Flexible Polyer Development Work Corporation, Compositions Agreement Indianapolis Technical Center University of Montreal Modelling of Two Layer Sponsored BICC Cables Die Flow Development Work Corporation, Agreement Indianapolis Technical Center Cornell University Nanocomposite Draft Sponsored BICC Cables Structures in Polyolefin Development Work Corporation, Insulations Agreement Indianapolis Technical Center
1. Sublicense Agreement between Dow Chemical Corporation and Dow Chemical Canada, Inc. ("Dow" or "Licensor") and BICC Cables Corporation ("Licensee") effective June 12, 1996 as amended. 2. Water Tree Retardant XLPE Compound License Agreement between Sumitomo Electric Industries, Ltd. ("Licensor") and Cablec Corporation ("Licensee") dated July 15, 1986. 3. Compound Licence Agreement between Sumitomo Electric Industries, Ltd. ("Licensor") and Cablec Corporation ("Licensee") dated July 15, 1986. 4. Moisture Barrier Technology License Agreement between Sumitomo Electric Industries, Ltd. ("Licensor") and Cablec Corporation ("Licensee") dated July 15, 1986. 5. Welded Sheath License Agreement between Sumitomo Electric Industries, Ltd. ("Licensor") and Cablec Corporation ("Licensee") dated July 15, 1986. 139 143 Schedule 15A Exhibit A to Schedule 15 Form of Assignment COPYRIGHT ASSIGNMENT THIS COPYRIGHT ASSIGNMENT is made this ____ day of _______, 19__ by _________________________, a ________ corporation ("Assignor"). WHEREAS, Assignor has entered into an Assets Sale and Purchase Agreement, dated April 6, 1999 (the "Agreement") among Assignor, _____________________ ("Assignee"), a ________ corporation, and certain other parties pursuant to which Assignor has agreed to sell and Assignee has agreed to purchase certain Proprietary Rights (as defined in Section ____ of the Agreement); and WHEREAS, Assignor is willing in connection with certain transactions being consummated on the date hereof to assign to Assignee all of Assignor's right, title and interest in and to those certain copyrights, U.S. and foreign copyright registrations, and applications for registration listed on Schedule A attached hereto (collectively, "Copyrights"); and WHEREAS, Assignee desires to acquire all of Assignor's right, title and interest in, to and under said Copyrights. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor has sold, assigned, transferred and set over, and does hereby grant and exclusively assign to Assignee its successors, legal representatives and assigns, all of Assignor's right, title and interest in and to the Copyrights, including rights to apply for copyright or other protection, to existing copyrights, to renewals and extensions, all rights to print, to publish, to reproduce, to prepare derivative works, to distribute copies of the Copyrights by sale, rental, lease, lending or other transfer of ownership, to publicly perform and to publicly display the Copyrights in all countries of the world, including the United States of America, and all of its territories and any rights and causes of action for copyright infringement, royalties and proceeds heretofore accrued. All rights in the Copyrights and all derivative works granted to an author under the copyright laws of the United States, foreign countries, and international copyright conventions and the right to grant these rights or any part of them to third parties are hereby assigned by Assignor to Assignee. 140 144 Assignor hereby requests the Commissioner of Copyrights to record Assignee, as assignee of the U.S. copyright registrations and applications for registration listed on Schedule A, for the sole use and enjoyment of Assignee, its successors, legal representatives and assigns. _____________________________ By:_______________________________ [Name]___________, Title STATE OF __________ ) ) SS. COUNTY OF ________ ) The foregoing assignment was acknowledged before me on this ___ day of _______, 19__, by ________________ of _____________________, a ________ Corporation, on behalf of the corporation. ____________________________________ NOTARY PUBLIC My Commission Expires:_____________ 141 145 PATENT ASSIGNMENT THIS PATENT ASSIGNMENT is made this ____ day of _______, 19__ by _________________________, a ________ corporation ("Assignor"). WHEREAS, Assignor has entered into an Assets Sale and Purchase Agreement, dated April 6, 1999 (the "Agreement") among Assignor, _____________________ ("Assignee"), a_________ corporation and certain other parties, pursuant to which Assignor has agreed to sell and Assignee has agreed to purchase certain Proprietary Rights (as defined in Section ____ of the Agreement); and WHEREAS, Assignor is willing in connection with certain transactions being consummated on the date hereof to assign to Assignee all of Assignor's right, title and interest in and to: (1) all U.S. patents and patent applications listed on Schedule attached hereto; and (2) all foreign patents and patent applications listed on Schedule attached hereto (collectively, "Patents"); and WHEREAS, Assignee desires to acquire all of Assignor's right, title and interest in, to and under said Patents. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor has sold, assigned, transferred and set over, and does hereby sell, assign, transfer and set over, unto the said Assignee, its successors, legal representatives and assigns, all of Assignor's right, title and interest in, to and under the Patents and all divisions, renewals and continuations thereof, and all Letters Patent of the United States which may be granted thereon and all reissues and extensions thereof (including, without limitation, all proceeds thereof and the rights to sue for past, present and future infringements), and all applications for Letters Patent which may hereafter be filed for said Patents in any country or countries foreign to the United States, and all Letters Patent which may be granted for said Patents in any country or countries foreign to the United States hereby authorized, and requests the Commissioner of Patents of the United States, and any Official of any country or countries foreign to the United States, whose duty it is to issue patents on applications as aforesaid, to record Assignee as the owner of all such Patents and issue all Letter Patent for said Patents to the said Assignee, as assignee of the patent applications listed on Schedule and Schedule hereto, for the sole use of Assignee, its successors, legal representatives and assigns, in accordance with the terms of this instrument. Assignor hereby requests the Commissioner of Patents and Trademarks to record Assignee, as assignee of the U.S. Patents and Patent Applications listed on Schedule for the sole use and engagement of the Assignee, its successors, legal representatives and assigns. _____________________________ By:_______________________________ [Name]__________, Title STATE OF __________ ) ) SS. COUNTY OF ________ ) The foregoing assignment was acknowledged before me on this ___ day of _______, ____, by ___________________________________, a ________ Corporation, on behalf of the corporation. 142 146 ___________________________________ NOTARY PUBLIC My Commission Expires:_____________ 143 147 TRADEMARK AND TRADE NAME ASSIGNMENT THIS TRADEMARK AND TRADE NAME ASSIGNMENT (the "Assignment") is made as of this ___ day of _________, ____, by and between _______________, a ________ corporation ("_________"), with its principal office at ___________________, ___________, ________, and ______________________________, a ________ corporation ("__________") and a wholly-owned subsidiary of _________________________, with its principal office at ______________, ______, __________. WHEREAS, _________________ and __________________ are parties to that certain Asset Purchase Agreement, dated as of ___________, pursuant to which _________ has agreed to sell and ________________________ has agreed to purchase certain Assets (as defined in the Asset Purchase Agreement) including, without limitation, the United States and foreign trademark registrations identified and set forth on Schedule A attached hereto and incorporated herewith (collectively, the "Marks"), the unregistered trademarks and the trade names identified and set forth on Schedule B, attached hereto and incorporated herewith (collectively, the "Trade Names"), and the goodwill of the business associated therewith; and WHEREAS, ______________________ wishes to acquire _______________'s entire right, title and interest in and to the Marks, title and interest in and to the Marks and the Trade Names, together with the goodwill of the business in connection with which the Marks and the Trade Names are used; NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, _______ does hereby sell and assign to ________ all the right, title and interest ______________ has or may have in the Marks and Trade Names and in any and all other marks or names owned or used by __________ or in which ____________ otherwise has any ownership interest and which include the listed terms of said Marks and/or Trade Names alone or in combination with other words, figures, designs or indicia, including any rights, title and interest as service marks, trademarks, tradenames and all common law rights connected therewith, together with the goodwill of the business with respect to which the Marks and Trade Names or any such other marks or names have been used and/or registered and all claims and causes of action relating to infringement of said Marks and Trade Names or said other marks or name. ___________ will assist in obtaining or providing any further documents which may be required to confirm chain or title thereto. Signed at __________________ this ______ day of ___________________, 19___. _______________________________________ By:___________________________________ Title:____________________________ ______________________________________ By: __________________________________ Title: __________________________ 144 148 Schedule 16 Environment 1 Definitions For the purpose of the Agreement and this Schedule and the following terms shall have the following meanings: Agreed Proportion means that proportion of any Environmental Loss which the parties have agreed that the Vendors shall bear in Section 5.1 of this Schedule 16. Agreed Remedial Action Plan means the initial program of work set out in Exhibit 16A to this Schedule 16 agreed between the Vendors and the Purchasers and as amended at Closing. Environmental Condition means any contamination or any condition existing prior to the Closing Date with respect to surface soil, subsurface soil, ambient air, surface waters, groundwaters, leachate, run- on or run-off, stream or other sediments, on, in, under, above or off the Vendor-Owned Real Properties or Leased Properties, which conditions cause or consist of a violation of and/or liability under applicable Environmental Laws or Environmental Permits and require investigation and/or remedial or corrective action on or off any Vendor-Owned Real Properties or Leased Properties by Vendors or other owner of the Vendor-Owned Real Properties or Leased Properties under applicable Environmental Laws or Environmental Permits and/or results in claims, demands, orders, directives, judgments or liabilities against Purchasers by third persons, including Environmental Governmental Authorities. Environmental Laws means any applicable law, by-law, regulation, code, ordinance, license, permit, order, judgment, decree or injunction promulgated by any Environmental Governmental Authority (A) for the protection of health, safety, including worker health and safety or the environment, (including air, water, soil, and natural resources) or (B) regulating Hazardous Substances, in each case as presently in effect and presently enforced in the relevant jurisdiction as of and including at Closing. Environmental Liability means any and all Liabilities arising under Environmental Laws in connection with or relating to (i) the operation of any of the Operations or any part thereof before Closing, (ii) the occupation of the Vendor-Owned Real Properties or Leased Properties or any part thereof by the Vendors or any other persons or entities before Closing (including liability under Environmental Law to undertake Remedial Action), (iii) the breach of any Environmental Warranty, or (iv) any Environmental Condition. Environmental Permit means any licenses, certificates, permits, directives, requirements, registrations, government approvals, agreements, authorizations, exemptions and consents which are required under or are issued pursuant to an Environmental Law or are otherwise required by Environmental Governmental Authorities for the operation of any of the Operations, the Vendor-Owned Real Properties or the Leased Properties on or before Closing. Environmental Proceedings means: (a) any civil, criminal, administrative or regulatory suit or proceeding; (b) any arbitration or dispute resolution procedure; (c) any investigation undertaken by or on behalf of an Environmental Governmental Authority under Environmental Law pursuant to which the Environmental Governmental Authority may order enforcement action or undertake or compel Remedial Action; and 145 149 (d) any court order, or any statutory or legislative notice or written notification issued by a Environmental Governmental Authority which determines or relates to liability under or a violation of any Environmental Law, assesses any civil, regulatory or criminal penalty, prohibits or imposes restrictions upon the Operations, the Vendor-Owned Real Properties or the Leased Properties or which requires action to be taken, Operations to be modified or Remedial Action to be undertaken, relating to, concerning or affecting any Environmental Liability. Environmental Warranties means the Warranties at Section 2 of this Schedule 16. Environmental Governmental Authority shall mean any US or Canadian agency, commission, department or body of any municipal, township, county, local, state, provincial or Federal governmental or quasi-governmental regulatory unit, entity or authority having jurisdiction or authority over any matter arising under Environmental Laws. Hazardous Substances means any pollutant, contaminant, waste, chemical, material or substance listed, defined, designated, classified or regulated as dangerous, special, hazardous, toxic or radioactive and any similar terms, under any applicable Environmental Law including petroleum and any derivative or by-product thereof. Operational Expenditure means in respect of any of the Operations any expenditure to the extent that after Closing it is incurred or is properly incurrable in the ordinary course of business of any of the Operations, as part of routine maintenance and upkeep of any works, plant, equipment and/or buildings and/or their services or to overcome fair wear and tear of such works, plant, equipment and/or buildings and/or their services or to ensure that such works, plant, equipment and/or buildings and/or their services remain in compliance with Environmental Laws after Closing but shall exclude any future expenditure arising or incurred by the Purchasers after Closing with respect to any works required to bring any plant, facility, building, property, equipment, or services into compliance with or satisfy the requirements of Environmental Laws which were non-compliant on the Closing Date. Qualified Consulting Firm shall mean a nationally or regionally recognized environmental engineering and/or consulting firm. By way of example, the parties hereby specifically recognize Cody Ehlers Group, ERM-Northeast, Pilko & Associates, Roux Associates, Inc., Dames & Moore and Philip Services and QST as such firms. Remedial Action means any works necessary to investigate, assess, monitor, remove, abate, close, mitigate, treat, remediate, ameliorate and/or contain any matter in accordance with Environmental Laws and includes any period of post-closure or remediation monitoring and any operation and maintenance relating to such remedial activities. 2 Environmental Warranties Except as disclosed in the Disclosure Letter: 2.1 The Operations and the Vendor-Owned Real Properties are in compliance in all material respects with all applicable Environmental Laws and Environmental Permits and, so far as the Vendors are aware, have been since January 1, 1998. 2.2 The Vendors have not received any written notice from any Environmental Governmental Authority or other third party alleging the violation of or liability under any applicable Environmental Laws other than for matters that have been fully and finally resolved prior to the Closing Date. 146 150 2.3 There are no suits, actions, proceedings, Environmental Proceedings, demands, notices or other claims, either pending or to the Vendors' knowledge threatened, against the Canadian Business or the US Business regarding any actual, potential or alleged liability or obligation under or violation of any applicable Environmental Laws with respect to the Operations, the Vendor-Owned Real Properties or the Leased Properties. 2.4 So far as the Vendors are aware, the Canadian Business and US Business (i) have all Environmental Permits necessary for the conduct of the Operations, the Vendor-Owned Real Properties and the Leased Properties; and (ii) all such Environmental Permits are in force. 2.5 So far as the Vendors are aware, the Canadian Business and US Business have not disposed of any Hazardous Substance on the Vendor-Owned Real Properties or Leased Properties in circumstances which are likely to give rise to material liability under Environmental Laws. 2.6 So far as the Vendors are aware, the Canadian Business and US Business have not had any emissions or discharges of any Hazardous Substances in circumstances which are likely to give rise to material liability under Environmental Laws. 2.7 Vendors have not caused any Environmental Condition and to Vendors' knowledge there exists no Environmental Condition. 2.8 So far as Vendors are aware no lien or superlien has been imposed on any of the Vendor-Owned Real Properties or Leased Properties in connection with any Environmental Liability. 2.9 So far as Vendors are aware there are no underground storage tanks, whether or not currently in use, at the Vendor-Owned Real Properties or Leased Properties and no underground storage tanks have previously been removed therefrom, and any existing underground storage tank disclosed in the Disclosure Letter, together with the piping appurtenant thereto, is free of leaks and is otherwise in compliance with applicable Environmental Laws. 3 Environmental Indemnity Subject to remaining provisions of this Schedule 16 together with Sections 2.3 to the extent not in conflict with the provision of this Schedule 16 of the Agreement, the Vendors agree to indemnify, defend and hold the Purchasers' Group harmless from and against any and all Liabilities and Losses including claims for personal injury and property damage arising out of or in connection with any Environmental Liability (collectively, "Environmental Loss" or "Environmental Losses") in an amount equal to the Agreed Proportion of any Environmental Loss suffered or incurred by the Purchasers' Group after Closing to the extent that it arises out of: 3.1 any breach of Environmental Warranties made by the Vendors contained in this Agreement; 3.2 any Environmental Liability arising out of or relating to any Environmental Condition, act or omission, in each case that existed with respect to the Operations on or prior to the Closing Date; 3.3 the violation of any then-applicable Environmental Law by the Canadian Business or the US Business on or prior to the Closing Date or which is continuing after the Closing Date for a period of four (4) months; 147 151 3.4 any Environmental Liability arising out of any failure by Vendors to prepare and timely file Notices as provided by Section 4 of this Schedule 16 or otherwise comply with the provisions of the transfer acts listed on Exhibit 16C; 3.5 any Environmental Liability arising out of the recycling or disposal of Hazardous Substances or the disposal of any other waste materials at any off-site location on or prior to the Closing Date; 3.6 any Environmental Liability arising out of any Excluded Assets, any Excluded Liabilities or any properties owned, occupied, operated, controlled or leased by the Vendors where such ownership, occupation, operation, control or lease ceased prior to Closing. 4 Change of Ownership Notification Vendors agree to prepare and timely file, at Vendors' sole expense, and in Vendors' names, all environmental forms, reports, notices, statements and questionnaires, however defined, required to be submitted to any Environmental Governmental Authority or to Purchasers in connection with the Agreement ("Notices"), as set forth on Exhibit 16C. Vendors further agree that all such filings shall be as complete and accurate as possible and that where such filings require the name of the person or entity who will be responsible for and undertake any Remedial Action which may be required, the Vendors shall identify the Vendors as the party responsible. 5 Limitations on liability 5.1 Apportionment of Environmental Losses (a) Vendors will bear 100% of the Environmental Losses which relate to: (i) the matters and projects identified on Exhibit 16A; and (ii) Sections 3.4, 3.5 and 3.6. (b) Vendors and Purchasers will bear Environmental Losses which relate to Sections 3.1, 3.2 and 3.3 in the following ratios [Vendors:Purchasers]: (i) 95:5 where written notice of a claim is given by the Purchasers to the Vendors prior to the third anniversary of the Closing Date; (ii) 70:30 where written notice of a claim is given by the Purchasers to the Vendors following the third anniversary of the Closing Date but prior to the fifth anniversary of the Closing date. (c) Notwithstanding anything in this Agreement to the contrary, and in addition to Vendors' obligations under Exhibit 16A, Vendors and Purchasers will bear Environmental Losses which relate to the matters and projects identified on Exhibit 16B in the following ratios: (i) Remedial Action required as a result of changes in applicable Environmental Law which occur prior to the first anniversary of the Closing Date will be shared 50:50; (ii) Remedial Action required as a result of changes to applicable Environmental Laws which occur after the first anniversary but prior to the second anniversary of the Closing Date will be shared 33 1/3 : 66 2/3; and 148 152 (iii) Remedial Action required as a result of changes to applicable Environmental Laws which occur after the second but prior to the third anniversary of the Closing Date will be shared 25:75. (d) Each written notice of claim under this Section 5.1 shall be given in accordance with the requirements of Section 19.14 of the Agreement and shall include reasonable details regarding the matter in respect of which the claim is being made (including an estimate of the amount of such claim if practicable). 5.2 Limits on Liability The Vendors shall not be liable in relation to any claim under Section 3 of this Schedule 16 of the Agreement: 5.2.1 in respect of any Operational Expenditure; and 5.2.2 in respect of any claim unless written notice of such claim is given by the Purchasers to the Vendors by the relevant anniversary date in accordance with Section 5.1 of this Schedule 16. 5.3 Change of Use / Exacerbation The Vendors shall not be liable in relation to any claim under Section 3 to the extent that the Environmental Loss which is the subject of the claim arises by virtue of the closure, redevelopment or proposed redevelopment of any Real Property after Closing or is made worse by the act or omission of the Purchasers (or any member of the Purchasers' Group) or because of any change in use of any Real Property. 5.4 Exclusive Remedy The rights and remedies of Purchasers and the Purchasers' Group under this Schedule 16 shall be the exclusive remedy for Environmental Losses and Purchasers shall have no other rights, and shall expressly release and waive any and all such other rights, against Vendors based on Environmental Laws with respect to matters covered by this Schedule 16. 6 Conduct of Claims The provisions of this Section 6 of this Schedule 16 shall apply to any matter which may give rise to or arises by virtue of a claim under Section 3 of this Schedule 16. 6.1 Where the Vendors or any member of the Vendors' Group has or may have a claim against a third party in relation to a matter which has given or may give rise to a claim under Section 3 of this Schedule 16, upon written request by Vendors to Purchasers, the Purchasers shall afford the Vendors all such assistance as may be reasonable in relation to its conduct of such claim (subject to any duties of confidentiality owed to third parties and to any right to maintain legal privilege), including access to and copies of any reports, correspondence, documents or other information in the possession of the Purchasers or any member of the Purchasers' Group. 6.2 Without prejudice to the validity of any claim or alleged claim made by the Purchasers under Section 3 of this Schedule 16, the Purchasers shall promptly appear and give testimony and shall provide such reports, documents, correspondence, information, assistance (including access to employees, agents or contractors of the Purchasers' Group) and facilities as are potentially relevant to any such claim and are in its possession (or in the possession of the Purchasers' Group) as the Vendors may reasonably request (subject to compliance with any 149 153 duties of confidentiality owed to third parties and to the right to maintain legal privilege) including reasonable access to any relevant part of any Real Property or so far as reasonably practicable to any adjacent or affected property. The Vendors receiving such information etc. shall keep all such information confidential except for disclosure in defending or prosecuting any Environmental Proceedings or any claim or alleged claim or argument under Section 3 of this Schedule 16 or as otherwise required by law. Vendors shall use reasonable efforts not to impose an undue burden on Purchasers. 6.3 If a claim under Section 3 of this Schedule 16 arises or may arise as a result of or in connection with any Environmental Proceedings to which the Purchasers or any member of the Purchasers' Group is or is likely to become a party or where the Purchasers or a member of the Purchasers' Group is the subject of such Environmental Proceedings, the Purchasers shall notify the Vendors within fifteen (15) Business Days, in writing, of such claim or potential claim and the actual or anticipated Environmental Proceedings as soon as it becomes aware of such claim or Proceedings, setting forth in reasonable detail the nature thereof and the basis upon which indemnification is sought, and the following provisions shall apply: (i) the Vendors shall have the right at any time to assume primary responsibility for and control over the conduct of all or any part of such Environmental Proceedings. Unless and until the Vendor assumes conduct by notice in writing to the Purchasers, the Purchasers shall have responsibility for the conduct of any such Environmental Proceedings; (ii) while the Purchasers have responsibility for the conduct of any such Environmental Proceedings, it shall be entitled to avoid, dispute, deny, defend, resist, appeal or contest such Environmental Proceedings (including, without limitation, making counterclaims or other claims against third parties in its own name) and to have responsibility for the conduct of such Environmental Proceedings, and any related Remedial Action, negotiations or appeals; provided, however, that no admission of liability shall be made by or on behalf of the Purchasers (or any member of the Purchasers' Group), and the claim shall not be compromised, disposed of or otherwise settled without the prior written consent of the Vendors (such consent not to be unreasonably withheld or delayed); (iii) Purchasers recognize Vendors' right to control the conduct of those Environmental Proceedings over which Vendors assume control. If the Vendors assume conduct of the Environmental Proceedings, they shall be entitled to take any action to avoid, dispute, deny, defend, resist, appeal, compromise or contest such Environmental Proceedings in the name of the Purchasers or any member of the Purchasers' Group. Vendors shall, however, consult as much as is reasonably practicable with and pay reasonable regard to the views of the Purchasers (or the relevant member of the Purchasers' Group) in respect thereof and shall not take such action in its name as may materially adversely affect the value of any Real Property or the goodwill or good name of the Purchasers (or the relevant member of the Purchasers' Group) and the Vendors shall consult as much as is reasonably practicable with and pay reasonable regard to the views of the Purchasers (or the relevant member of the Purchasers' Group) as regards any negotiations and/or appeals arising out of such Environmental Proceedings. Vendor shall make no admission of liability and the claim shall not be compromised, disposed of or otherwise settled without the prior written consent of Purchasers (such consent not to be unreasonably withheld or delayed); (iv) except as otherwise provided herein, after Vendors' assumption of the defense of the Environmental Proceeding the Vendors shall not be liable to the Purchasers for 150 154 any legal or other expenses subsequently incurred by the Purchasers in connection with the defense thereof; 6.4 The party having responsibility for the conduct of any Environmental Proceedings (the "Conduct Party") shall also ensure that: (i) the other party shall be informed promptly of any information, and shall be provided with copies of any correspondence or documents held by the Conduct Party which is material to the Environmental Proceedings (except to the extent this would reasonably be expected to waive privilege in respect thereof); (ii) the other party shall be provided with advance notice of any proposal by the Conduct Party (or any member of its group of companies) or any third party to undertake Remedial Action provided that this obligation shall not apply in case of emergency, that is where there is an imminent and substantial risk of serious harm to human health or to the environment; 6.5 If any amount is recovered in relation to any Environmental Loss or claim under the Environmental Warranties pursuant to Sections 7.1 and/or 7.3 of this Schedule 16, after first deducting any costs and expenses incurred in relation to such recovery, the balance shall be divided between the Vendors and the Purchasers in accordance with the Agreed Proportion in which the Environmental Loss arising in relation to the breach of Environmental Warranties was borne by them. 7 Remedial Action With respect to any Environmental Proceedings that involve Remedial Action, and with respect to the Agreed Remedial Action Plan, the Vendors shall be the Conduct Party and the following shall apply: 7.1 Scope of Work (i) AGREED REMEDIAL ACTION PLAN: Within ninety (90) calendar days after Closing, Vendors shall retain a Qualified Consulting Firm to prepare a work plan (Scope of Work) setting forth (in reasonable detail) the Remedial Action to be performed with respect to the conditions set forth on the Agreed Remedial Action Plan (the Remedial Work) for the approval of Purchasers, which approval shall not be unreasonably withheld. With respect to other Remedial Action under this Schedule 16, Vendors shall retain such consultant within 90 days of written notice by Purchasers to Vendors of the need to initiate Remedial Action. (ii) ENVIRONMENTAL PROCEEDINGS: where Remedial Action is required as a result of any Environmental Proceedings pursuant to Section 6.3 of this Schedule 16, the time within which Vendors shall retain a Qualified Consulting Firm to prepare a Scope of Work for the approval of Purchasers, which approval shall not be unreasonably withheld, shall be within Vendors' discretion. (iii) Within twenty-one (21) Business Days after receipt from Vendors of the Scope of Work, Purchasers shall advise Vendors in writing of its approval thereof or objections thereto. If Purchasers fails to respond, in writing, within such twenty-one (21) Business Day period, then Purchasers shall automatically be deemed to have approved the Scope of Work. If Purchasers object to the Scope of Work, and the parties are unable to resolve such objections either Vendors or Purchasers shall have the unilateral right, but not the obligation, to provide written notice to, and/or consult with (Notify), the applicable Government Authority regarding the 151 155 appropriate Scope of Work for the conditions for which Purchasers and Vendors fail to agree upon a Scope of Work; provided, however, that the party that desires to Notify such Environmental Governmental Authority shall first give the other party five (5) Business Days' prior written notice thereof (the Scope of Work Notice) in accordance with the following procedure: (a) within five (5) calendar days after Purchasers or Vendors (as the case may be) receive the Scope of Work Notice, Vendors shall Notify the applicable Environmental Governmental Authority, in writing, regarding the appropriate Scope of Work as to which Purchasers and Vendors disagree upon a Scope of Work; (b) in the event that Vendors fail to Notify the Environmental Governmental Authority within such five (5) calendar day period, Purchasers shall have the right, but not the obligation, to Notify the Environmental Governmental Authority, in writing, in order to determine the appropriate Scope of Work; and (c) if neither party notifies the Environmental Governmental Authority or if no definitive answer is received from the Environmental Governmental Authority within 60 calendar days of the Notice, the Vendors and Purchasers shall jointly agree upon, retain and share equally the cost of a Qualified Consulting Firm (Third Party Consultant) to provide an opinion concerning the appropriate scope for the items as to which the parties disagree. Within ten Business Days of the retention, Vendors shall provide the Scope of Work to the Third Party Consultant and Purchasers shall provide to the Third Party Consultant a writing setting forth in detail the items as to which they disagree and the reasons therefor. As soon thereafter as reasonably possible, Vendors and Purchasers and their environmental consultants shall jointly communicate and/or meet with the Third Party Consultant. Within seven days of the joint communication and/or meeting with the Third Party Consultant, the Third Party Consultant shall advise of its opinion regarding the appropriate scope of work for the items as to which the parties disagree, and the Scope of Work shall be revised to reflect the determination of the Third Party Consultant. 7.2 Notice to Environmental Governmental Authorities 152 156 After the Scope of Work is determined pursuant to Section 7.1(ii) of this Schedule 16, then, prior to undertaking the Remedial Work, Vendors shall, at any time, consult with Purchasers regarding whether any notice to, or consultation with, any Environmental Governmental Authority is required under applicable Environmental Laws. If either Vendors or Purchasers reasonably determine that any such notice or consultation is required under applicable Environmental Laws, Vendors, after giving Purchasers reasonable advance notice thereof shall undertake such notice or consultation and, if required by the Environmental Governmental Authority with jurisdiction over the Remedial Work or if desired by Purchasers, shall seek approval of the Remedial Work from that Environmental Governmental Authority. Vendors agree that, from time to time, the Scope of Work for the Remedial Work may be revised and shall be deemed to include any and all Remedial Action required by such Environmental Governmental Authority; provided, however, that Vendors shall have the right to conduct negotiations with, and undertake appeals to, such Environmental Governmental Authority. Purchasers shall be kept reasonably informed of such negotiations and appeals, receive copies of proposed submissions and reports for review and comment and afforded an opportunity to participate in all meetings and conferences with any Environmental Governmental Authority. Vendor shall pay reasonable regard to any comments submitted by Purchasers. Nothing contained herein shall be deemed to prevent Vendors or Purchasers from complying with applicable reporting requirements under Environmental Laws. Vendors shall have the right to delay commencement or continuation of Remedial Work as long as Vendors properly obtain any necessary stays pending appeals from the Environmental Governmental Authority, if needed, provided that such delay shall not unreasonably interfere with Purchasers' use of or operations at the affected Real Property. 7.3 Performance of Work (i) Promptly following approval of the Scope of Work by Purchasers and any Environmental Governmental Authorities consulted or notified, Vendors shall diligently cause and continue to cause the Remedial Work to be diligently performed by their Qualified Consulting Firm until such work is completed (as that term is defined under Section 7.5 of this Schedule 16). From and after Purchasers' approval of any Scope of Work, Vendors may not materially modify, amend, restrict, expand, alter or eliminate any provision or component of the Scope of Work without Purchasers' prior consent, which consent shall not be unreasonably withheld or delayed. (ii) Notwithstanding the provisions of Section 7.3(i) of this Schedule 16, Vendors may, without prior consultation with Purchasers if such prior consultation is not possible, amend the Scope of Work to take such action but only as is reasonably necessary in case of an emergency or to comply with a lawfully issued emergency demand or order of the relevant Government Authority, provided, however, that Vendor shall notify Purchasers of any such amendment as soon thereafter as is possible. 7.4 Institutional Controls In the event that the Environmental Governmental Authority with jurisdiction over the Remedial Work agrees that the level of remediation required at a Real Property at which Remedial Work is being performed may be reduced by the imposition of restrictions limiting the use and occupancy of the Real Property to non-residential uses, Purchasers shall not unreasonably withhold its consent to the imposition of such use restrictions and shall not seek any compensation therefor from Vendors. Vendors shall not propose to any Environmental Governmental Authority or agree to the imposition of any other institutional controls without Purchasers' written consent which consent Purchasers may withhold if Purchasers, in their reasonable discretion, determine that such controls will substantially reduce the value of the Real Property or unreasonably interfere with its current use of the Real Property. 153 157 7.5 Completion of Remedial Work Upon the completion of the Remedial Work at any Real Property in accordance with the approved Scope of Work and as necessary to satisfy the requirements of applicable Environmental Laws or Environmental Permits, Vendors shall so advise Purchasers and shall provide such documentation as Purchasers may reasonably require to satisfy Purchasers that the Remedial Work has been completed. For the purposes of this Section, "completed" or "completion" shall mean: (i) in the event that Vendors or Purchasers have provided notice to or consulted with a Environmental Governmental Authority with respect to the Remedial Work, Vendors shall have: (x) obtained a written statement by the Environmental Governmental Authority with jurisdiction over the Remedial Work in question that no further action is required with respect to such Real Property, and (y) if applicable, formally requested and obtained, in writing, the closure, de-listing and/or removal of the relevant Real Property from any list maintained by such Environmental Governmental Authority, or (ii) in the event that a Environmental Governmental Authority has not been consulted or has been consulted and has not responded within six (6) months, completion shall be evidenced by a written certification to Purchasers from Vendors' Qualified Consulting Firm, in a form reasonably acceptable to Purchasers, stating that all such work has been completed in accordance with the approved Scope of Work and the requirements of applicable Environmental Laws and Environmental Permits satisfied. 7.6 Access for Performance of Remedial Work Prior to the performance of the Remedial Work by Vendors, Vendors and Purchasers shall execute an Access Agreement in each case in which Remedial Work is to be performed by Vendors, and substantially in the form and substance of Exhibit 16D, Model Access Agreement. 7.6.1 Prior to, and throughout the performance of the Remedial Work by Vendors, Vendors shall cause their Qualified Consulting Firm and all other contractors to maintain workers' compensation insurance, as required by law, professional errors and omissions liability insurance, where appropriate, of not less than $3,000,000, contractor's pollution liability insurance with coverage of not less than $1,000,000 per occurrence, general liability insurance with coverage of not less than $1,000,000 per occurrence and umbrella liability insurance with coverage of not less than $10,000,000. Purchasers shall be named as an additional insured with respect to the general liability policy. Vendors shall, promptly upon Purchasers' request, provide Purchasers with Certificates of Insurance. 154 158 Schedule 17 Excluded Assets 1.1 The benefit of any Claim made by the Vendors in respect of insurance arising or accruing in consequence of anything done or omitted to be done prior or subsequent to Closing relating to an Excluded Liability or Excluded Asset; 1.2 All right, title and interest in the trade marks and trade names "BICC" and "Brand Rex" other than pursuant to Section 17.5 of the Agreement; 1.3 Debts owing by any employee who is not a Continuing Employee; 1.4 Debts due from any relevant Tax authority in respect of any Tax arising on or before Closing except to the extent reflected in the Net Asset Statement including any bond or other security issued by any Tax authority or other Governmental Authority representing any such debts; 1.5 Cash and Cash Equivalents credited to any account of either Vendor, wherever held; 1.6 Debts due not included in the Net Asset Statement that are not part of the Operations; 1.7 All prepayments, deposits and escrows that do not relate to the Operations; 1.8 All Claims, causes of actions and other legal rights and remedies that do not relate to Assumed Liabilities. 1.9 The former manufacturing site in York, PA; 1.10 The former manufacturing site in Yorkers, New York; 1.11 The following former sales offices: a) Schaumberg, IL b) Norcross, GA c) Huntington Beach, CA d) Houston, TX; 1.12 All shares of capital stock and any other interest of the US Vendor in Brintec Canada Ltd., General Precision Parts, Inc. and BBR Holding Ltd. 1.13 All assets relating to Employee Benefit Arrangements that are not being assumed by the Purchasers. 1.14 Books, records and files, including minute books and other corporate record books and all Tax records and files relating to the Vendors or the Excluded Assets or Excluded Liabilities. 1.15 Personal computers, office desks and office chairs of Employees that are not Continuing Employees. 1.16 Asset Purchase Agreement dated as of February 19, 1996 between BICC Philips Inc. and Essex international, Inc. 1.17 The following Hardware & Furniture used at the West Nyack Facility - 3 Compaq Deskpro 2000 Computers including Optiquest monitors and cables - HP LaserJet 4000N printer - HP LaserJet III - HP LaserJet 6L (S. Brecher) - Any and all furniture located within the Tax Dept. 164 159 1.18 The following Software used at the West Nyack Facility - Fast Tax for 1997 &1998 - AACTS for 1994, 1995 & 1996 - Microsoft Office 95 which includes Microsoft Word word-processing and Microsoft Excel spreadsheet - Lotus 1-2-3 spreadsheet - FAS Encore Tax Depreciation Software - Org Plus for Windows 3.1 - CCH Omni Tax Tax Research software - CCH Perform Plus for Windows - CCH Win Tax Rate Locator - Federal Tax Products - 1998 U.S. Federal Tax Products CD-ROM - New York State Personal and Corporate Tax Forms for 1998 CD-ROM - WinZip - CompuServe (Internet access) - Kubra Doc 2.1 (Internal software to print invoices) 1.19 The following items in the West Nyack Tax Library - CCH, BNA, RIA, Panel Publishing & etc. Tax Research Books and Forms in the Tax Dept. Library in West Nyack - Tax subscriptions by CCH, BNA, RIA, Panel Publishing & other publishers 1.20 The following items in the West Nyack Tax Files - All files located in the Tax Department in West Nyack - All BICC Cables and Pyrotenax Usa, Inc. files in archives (entire contents in off- site storage) - Any and all BICC Cables and Pyrotenax USA, Inc. corporate files through the date of Closing 1.21 Federal & State Tax Estimates or Receivables Re: BICC Cables Corp. and Pyrotenax USA, Inc., including IRS refund of about $900K Re: IRS audit - Brintec Corporation & subs 1.22 Accounting Software & Files - Access to the Accounting Software for all years through the date of Closing - Access to Accounting Dept. files through the date of Closing 1.23 The individual employment Contract of each Employee set forth in the Employment Letter who is not a Continuing Employee. 165 160 Schedule 18 Bonds and Guarantees BICC USA GROUP OUTSTANDING LETTERS OF CREDIT April-99
ORIGINAL AP $ ISSUING BANK ISSUE EXPIRY No. PL OBLIGO BENEFICIARY AMOUNT BANK REF DATE DATE COMMENTS - ----------------------------------------------------------------------------------------------------------------------------------- 31 BC BCC Atlantic Mutual W.C. 675,000 CHASE P-398331 10/15/97 1-Nov-98 WC Prems/BCC Evergree C BICC 30 days - ----------------------------------------------------------------------------------------------------------------------------------- 33 BC BCC STATE BANK OF 9,090 CHASE P-357205 3-MAR-98 23-Mar-00 For Guar to Kudremukh C INDIA Iron Ore Co. - ----------------------------------------------------------------------------------------------------------------------------------- 38 BC BCC ABB Sadelmi S.P.A. 144,489 CHASE P-374754 11-Aug-98 30-Oct-01 Bid C - ----------------------------------------------------------------------------------------------------------------------------------- 41 BC BCC Travelers W.C. BICC 1,900,000 CHASE P-396747 8-MAR-99 15-Mar-00 WC Prems - Evergreen C 90 days - ----------------------------------------------------------------------------------------------------------------------------------- N/A BC BCC ABB Sadelin S.P.A 46,448 CHASE Pending Pending 30-Mar-02 Bid C - ----------------------------------------------------------------------------------------------------------------------------------- Total 8,577,303 - ------------------------------------------------------------------------------------------------------------------------------------
166 161
- ------------------------------------------------------------------------------------------------------------------------------------ SURETY REPORT M-DAY M-DAY Bond - ------------------------------------------------------------------------------------------------------------------------------------ Bond No. Surety Principal Obligee/in State of Bond Effective Expire Amount - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ 183946 Nat. Union Utility CA, City of Roseville Labor & 08/14/98 12/31/99 459,745.00 - ------------------------------------------------------------------------------------------------------------------------------------ Material - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ 016720 Nat. Union Polymers IN, Marion Environmental Fin Guar. 11/21/98 11/21/99 400,000.00 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ 141451 Nat. Union Utility NE, Omaha Pub. Power Perf. 06/13/96 06/05/99 2,900,000.00 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ 183948 Nat. Union Utility NE, Omaha Publ Power Perf. 11/08/98 04/30/99 265,000.00 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ *183949 Nat. Union Utility NE, Omaha Pub. Power Perf. & Pay. 11/17/98 12/30/99 385,836.00 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ 172097 Nat. Union Brand-Rex TX, Graybar Electric Contract 04/10/97 04/30/99 16,249.00 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Dated: 4/05/99 SURETY REPORT 1/27/98 Pg. 2 of 2 - ------------------------------------------------------------------------------------------------------------------------------------ M-DAY M-DAY Bond Bond No. Surety Principal Obligee/in State of Bond Effective Expire Amount - ------------------------------------------------------------------------------------------------------------------------------------ 183941 Nat. Union Utility WA, Snohomish, Co, PUD Perf. 05/01/98 04/30/99 243,285.00 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ * Nat. Union Utility WA, Orcas Power & Light Bid Bond 04/03/98 04/30/99 75,000.00 - ------------------------------------------------------------------------------------------------------------------------------------ CUSTOMS BONDS - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ 06-1093542 C.A. Shea DQ Utility DuQuoin, IL Customs 04/22/98 04/22/99 100,000.00 - ------------------------------------------------------------------------------------------------------------------------------------ UT Utility West Nyack, NY Customs 04/22/98 04/22/99 - ------------------------------------------------------------------------------------------------------------------------------------ JM Utility Malvern, AR Customs 04/22/98 04/22/99 - ------------------------------------------------------------------------------------------------------------------------------------ SV Utility Marshall, TX Customs 04/22/98 04/22/99 - ------------------------------------------------------------------------------------------------------------------------------------ PS BPC Indianapolis, IN Customs 04/22/98 04/22/99 - ------------------------------------------------------------------------------------------------------------------------------------ MN BBR Marion, IN Customs 04/22/98 04/22/99 - ------------------------------------------------------------------------------------------------------------------------------------ SH BBR South Hadley, MA Customs 04/22/98 04/22/99 - ------------------------------------------------------------------------------------------------------------------------------------
167 162 - ------------------------------------------------------------------------------------------------------------------------------------ CT BBR Willmantic, CT Customs 04/22/98 04/22/99 - ------------------------------------------------------------------------------------------------------------------------------------ JK BBR Jackson, TN Customs 04/22/98 04/22/99 - ------------------------------------------------------------------------------------------------------------------------------------ 970201- BICC-CAN Canada St. Jerome Customs 04/22/98 04/22/99 00835 - ------------------------------------------------------------------------------------------------------------------------------------ 970201- BICC-CAN Canada Moose Jaw Customs 04/22/98 04/22/99 01727 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ OTHERS - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ ANNUALS - ------------------------------------------------------------------------------------------------------------------------------------ 61-02461 Nat. Union Utility Puerto Rico Electric Power Bid Bond renewed yrly. $ 850,000.00 - ------------------------------------------------------------------------------------------------------------------------------------ 11-98-01 Nat. Union Utility Omaha Public Power Bid Bond open - ------------------------------------------------------------------------------------------------------------------------------------ 11-98-02 Nat. Union Utility Lincoln Electric System Bid Bond open - ------------------------------------------------------------------------------------------------------------------------------------ 11-98-03 Nat. Union Utility Nebraska Publish Power District Bid Bond open - ------------------------------------------------------------------------------------------------------------------------------------ 11-98-04 Nat. Union Utility Public Utility #1 Snohomish City Bid Bond $35,000.00 - ------------------------------------------------------------------------------------------------------------------------------------ 11-98-09 Nat. Union Utility Sacramento (SMUD) Continuous - ------------------------------------------------------------------------------------------------------------------------------------ * = New bonds included in this quarter. * = bonds added and removed during this quarter - ------------------------------------------------------------------------------------------------------------------------------------
168 EX-2.2 3 EXHIBIT 2.2 1 Exhibit 2.2 AMENDMENT NO. 1 TO AND ASSIGNMENT OF ASSETS PURCHASE AGREEMENT -------------------------------------------------------------- AMENDMENT NO. 1 TO ASSETS PURCHASE AGREEMENT (the "AMENDMENT"), dated as of May 27, 1999, by and among BICC CABLES CORPORATION, a company incorporated in Delaware, the United States, whose principal place of business is at One Crosfield Avenue, West Nyack, NY; PYROTENAX USA INC. (together with BICC Cables Corporation, the "US VENDOR"), a company incorporated in Delaware, the United States; BICC CABLES CANADA INC. (the "CANADIAN VENDOR"), a company incorporated under the federal laws of Canada, whose principal place of business is at 265 Yorkland Boulevard, Suite 500, North York, Ontario M2J 155; BICC PLC (the "VENDORS' GUARANTOR"), a company incorporated in England and Wales, whose registered office is at Devonshire House, Mayfair Place, London W1X 5FH; GK TECHNOLOGIES, INCORPORATED (the "US PURCHASER"), a company incorporated in New Jersey, the United States, whose principal place of business is at 4 Tesseneer Drive, Highland Heights, KY 41076; GK TECHNOLOGIES, INCORPORATED (the "CANADIAN PURCHASER" and together with the US Purchaser, the "PURCHASER"), a company incorporated in New Jersey, the United States, whose principal place of business is at 4 Tesseneer Drive, Highland Heights, KY 41076; GENERAL CABLE CORPORATION (the "PURCHASERS' GUARANTOR"), a company incorporated in Delaware, the United States whose principal place of business is at 4 Tesseneer Drive, Highland Heights, KY 41076; BICC GENERAL PYROTENAX CABLES LTD. ("PYROTENAX ASSIGNEE"), a company incorporated in Ontario, Canada; BICC GENERAL CABLE (USA) LLC ("US ASSIGNEE"), a limited liability company organized under the laws of the state of Delaware, the United States; and BICC GENERAL CABLE COMPANY ("CANADIAN ASSIGNEE"), an unlimited liability company incorporated in Nova Scotia, Canada. W I T N E S E T H: ------------------ WHEREAS, the US Vendor, the Canadian Vendor, the Vendors' Guarantor, the US Purchaser, the Canadian Purchaser and the Purchasers' Guarantor are parties to an Assets Sale and Purchase Agreement, dated as of April 6, 1999 (the "ASSET PURCHASE AGREEMENT"); WHEREAS, the parties to the Asset Purchase Agreement desire to consent to make certain amendments to the Asset Purchase Agreement, as set forth below and to set forth other agreements among the parties; WHEREAS, the US Purchaser and Canadian Purchaser desire to assign all of their rights and delegate all of their obligations arising under the Asset Purchase Agreement to the US Assignee, the Canadian Assignee and the Pyrotenax Assignee; and WHEREAS, the US Vendor, Canadian Vendor and Vendor's Guarantor desire to consent to such assignment and delegation. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: A G R E E M E N T: ------------------ I. DEFINED TERMS. Except as otherwise expressly provided herein, capitalized terms used herein that are defined in the Asset Purchase Agreement, as amended hereby, shall have the same meaning as specified in the Asset Purchase Agreement, as so amended. II. AMENDMENTS: the Asset Purchase Agreement is hereby amended as set forth below. 2 (a) A new Section 3.4 is added to the Asset Purchase Agreement to read in its entirety as follows: "3.4 ADJUSTMENT WITH RESPECT TO JACKSON, TENNESSEE PROPERTY. Notwithstanding anything to the contrary contained herein and in connection with the assignment at Closing to the US Purchaser of that certain lease dated May 1, 1991 (the "Lease") between the US Vendor and The Industrial Development Board of the City of Jackson, a Tennessee public non-profit Corporation, at the Closing the Purchase Price shall be reduced by $9 million, the amount of the aggregate Liability to be assumed by the US Purchaser with respect to the Lease. The adjustment set forth in this Section shall take effect as an adjustment to the Purchase Price. No adjustment to the Purchase Price shall be made in accordance with the provisions of Section 9 of the Agreement for the Liability for which the Purchase Price is adjusted pursuant to this Section." (b) Section 6.4.2 of Schedule 8 shall be deleted in its entirety and replaced with the following: "Without limiting Section 6.4.1, Vendors shall also be responsible for one-half of the special award payments payable pursuant to the special performance letters dated August 20, 1998, and August 24, 1998, (as in effect immediately prior to the Closing Date) concerning Anthony Cutri, Joseph DeBolt, William Fike, Linda Ermelin, Robert Jamieson (collectively, the "SPECIAL PERFORMANCE LETTERS"). The US Purchaser shall be responsible for the other half of the special award payments pursuant to the Special Performance Letters." (c) A new Section 17.5.7 is added as follows: "17.5.7. The parties have agreed that without prejudice to the rights conferred on the US Purchaser under and notwithstanding Section 17.5.3 the US Purchaser shall be entitled to use and have the right to sublicense to any wholly owned subsidiary of the Purchaser's Guarantor (but only for so long as such remain a wholly owned subsidiary of the Purchaser's Guarantor) the name "BICC General Brand Rex Cables "as the name of any corporate entity, partnership or other vehicle which, in all cases, is solely involved in the manufacture, sale or distribution of Specialty Cables in the United States of America, Canada or Mexico." (d) A new section 17.8 is added as follows: "17.8 RECORDS RETENTION AND ACCESS 17.8.1 (a) The Purchaser shall keep and preserve in an organized and retrievable manner all books, records and other information in any form including paper, electronically stored data, magnetic media, film and microfilm included in the Acquired Assets (the "PURCHASER BOOKS AND RECORDS") for three (3) years from the Closing Date or longer if the statute of limitations for income tax purposes has not expired for any income or franchise tax return for any taxable period prior to or including the Closing Date. The Purchaser shall neither dispose of nor destroy such Books and Records at any time without first offering to turn over possession thereof to the US Vendor and the Canadian Vendor by written notice to each at least fifteen (15) days prior to the proposed date of such disposition. (b) Each of the US Vendor and the Canadian Vendor shall keep and preserve in an organized and retrievable manner all books, records and other information in any form including paper, electronically stored data, magnetic media, film and microfilm included in the Excluded Assets (the "VENDOR BOOKS AND -2- 3 RECORDS") for three (3) years from the Closing Date or longer if the statute of limitations for income tax purposes has not expired for any income or franchise tax return for any taxable period prior to or including the Closing Date. Neither the US Vendor nor the Canadian Vendor shall dispose of or destroy such Books and Records at any time without first offering to turn over possession thereof to the Purchaser by written notice to the US Purchaser at least fifteen (15) days prior to the proposed date of such disposition. 17.8.2 (a) Purchaser shall allow the Canadian Vendor and the US Vendor, their representatives, attorneys and accountants, at the respective Vendors' expense, access to the employees of the Purchaser and to the Purchaser Books and Records upon reasonable request and during normal business hours for the purpose of interviewing, examining and copying to the extent reasonably necessary or advisable in connection with any litigation or proceeding, the preparation of any required tax returns or in connection with any tax procedure, any obligation or duty hereunder, compliance with any legal duty or obligation, or otherwise. (b) Each of the US Vendor and the Canadian Vendor shall allow the Purchaser, its representatives, attorneys and accountants, at the Purchaser's expense, access to the employees of the Vendors to the Vendor Books and Records upon reasonable request and during normal business hours for the purpose of interviewing, examining and copying to the extent reasonably necessary or advisable in connection with any litigation or proceeding, the preparation of any required tax returns or in connection with any tax procedure, any obligation or duty hereunder, compliance with any legal duty, or obligation or otherwise. 17.8.3 (a) The Purchaser shall allow Internal Revenue Service or Revenue Canada examining agents or state or provincial income or franchise or sales tax examining agents, if accompanied by the Canadian or US Vendor's tax representatives, accountants or attorneys, access to the Purchaser Books and Records during normal business hours for the purpose of conducting an income or franchise tax audit of the Operations for any tax period prior to or including the Closing Date; which access shall be limited in scope to the Purchaser Books and Records which are relevant to the subject matter of the audit. (b) Each of the US Vendor and the Canadian Vendor shall allow Internal Revenue Service or Revenue Canada examining agents or state or provincial income or franchise or sales tax examining agents, if accompanied by the Purchaser's tax representatives, accountants or attorneys, access to the Vendor Books and Records during normal business hours for the purpose of conducting an income or franchise tax audit of the Operations." (c) Section 19.5.2 of the Asset Purchase Agreement is deleted in its entirety and replaced with the following: "19.5.2 This Agreement is personal to the parties to it. Accordingly, except as otherwise set forth in Section 19.5.1 no party may, without the prior written consent of the Purchasers and the Vendors' Guarantor, assign either this agreement or any of its rights, interests or obligations under this Agreement; provided, however, (i) the US Purchaser and the Purchasers' Guarantor may assign all of their rights and interest hereunder relating to the US Business and delegate all of their obligations hereunder relating to the US Business to any person to whom the US Purchaser sells a substantial part of the assets of the US Business or to any person that is the successor to all or substantially all of the US Business; (ii) the Canadian Purchaser and the Purchasers' Guarantor may assign all of their rights and interests hereunder relating to the Canadian Business and delegate all of their obligations hereunder relating to the Canadian Business to any person to whom the Canadian Purchaser sells a substantial part of the assets of the Canadian Business or to any person that is the successor to all or substantially all of the Canadian Business; and (iii) and the Vendors and the Vendors' Guarantor may assign all of their rights and delegate all of their obligations hereunder to any person to whom the Vendors or the Vendors' Guarantor sell a substantial part of their respective assets. This Agreement shall bind, benefit, and be enforceable by and against each party hereto and its successors and permitted assigns." -3- 4 (d) Schedule 1 of the Asset Purchase Agreement is amended to reflect that the Jackson, TN site is a Leased Property and not a Vendor Owned Real Property. (e) Schedule 10, Part I, Transfer Taxes is deleted in its entirety and replaced with Exhibit B hereto. (f) Schedule 15 of the Asset Purchase Agreement is deleted in its entirety and replaced with Exhibit A hereto. III. ADDITIONAL AGREEMENTS REGARDING EMPLOYMENT MATTERS. In addition to the foregoing amendments to the Asset Purchase Agreement, the parties agree as follows: (a) SECTION 401(K) PLAN. US Vendor and US Purchaser agree that notwithstanding the provisions of Section 1.1.1 of Schedule 12 of the Asset Purchase Agreement, the assets and liabilities of the BICC Cables Corporation 401(k) Savings Plan (the "PLAN") attributable to the accrued benefits of those employees of the US Vendor who remain employed at the corporate headquarters of the US Vendor post-Closing shall not be transferred to another plan maintained by the US Vendor or one of its affiliates, but instead shall be included in the Plan as assumed by US Purchaser at Closing. The parties further agree that the participation in the Plan by those employees who remain employed at the corporate headquarters of the US Vendor post-Closing shall be frozen, and that amendments to the Plan necessary to implement the foregoing shall be adopted prior to Closing, and that all loans outstanding to such employees shall be repaid prior to Closing. (b) SEVERANCE PLAN. Notwithstanding the provisions of Section 1.2 of the Asset Purchase Agreement, US Purchaser hereby agrees to pay severance benefits (including Salary as defined under, and all Benefits specified in Attachment A to, the BICC Cables Corporation Severance Plan) for the period specified in, and in accordance with the terms of the BICC Cables Corporation Severance Plan, as in effect on the date of the Asset Purchase Agreement (April 6, 1999), to all Continuing Employees whose employment with the US Purchaser is terminated within 90 days after the Closing Date, as if the employee were terminated from BICC. Such payments shall be in lieu of any other severance benefits to which the individual might be entitled under the General Cable Severance Plan. US Vendor shall reimburse US Purchaser each month, within 5 business days of receipt of an invoice for such month after the last day of such month, for an amount equal to the sum of (i) one-half of the difference between (A) the actual monthly salary continuation payment, if any, made during such month by US Purchaser to any Continuing Employee whose employment was terminated within 90 days after the Closing Date; and (B) the monthly salary continuation payment to which such Continuing Employees would otherwise be entitled under the General Cable Severance Plan in the absence of this paragraph (b) and (ii) one-half of the employer matching contribution made by General Cable to the Section 401(k) Plan with respect to any salary deferrals made during such month by any Continuing Employees whose employment was terminated within 90 days after the Closing Date, provided that the total amount payable by US Vendor pursuant to this paragraph (b) shall not exceed $275,000. (c) Cooperative Efforts. US Purchaser has agreed that upon the Closing Date it will cause all of the employees of the US Vendor (other than those employees with employment contracts who are not listed in the Employment Letter as continuing employees) to become Continuing Employees of US Purchaser. The parties recognize, however, that for purposes of effecting a smooth transition of the sale of US Vendor's operations each side may wish to draw on the expertise of employees of the other. To this end, the parties agree that, for 60 days from the Closing without charge, US Vendor shall be permitted reasonable access to the employees of US Purchaser after Closing for purposes of obtaining such information as necessary to implement the wind-up of US Vendor's operations in the United States and US Purchaser shall be permitted reasonable access to the remaining employees of US Vendor after Closing for purposes of assisting in the integration of the business. Any services provided to US Vendor by an employee of US Purchaser pursuant to this Section III shall be performed in his capacity as an employee of US Purchaser, under the exclusive direction and control of US Purchaser, and he shall in no event on account of such -4- 5 services become an employee of US Vendor or entitled to any benefit plans maintained by US Vendor, and any services provided to US Purchaser by an employee of US Vendor shall be performed in his capacity as an employee of US Vendor, under the exclusive direction and control of US Vendor, and he shall in no event become an employee of US Purchaser on account of such services or entitled to any benefit plans maintained by US Purchaser. After 60 days from the Closing US Purchaser and US Vendor shall review these arrangements to determine whether it is appropriate for such access to be on a cost reimbursable basis going forward or otherwise. (d) LEASEBACK. US Vendor hereby reserves the right to require that up to four individuals, to be named by US Vendor, who become Continuing Employees of US Purchaser, be leased back to US Vendor, for such period as required by US Vendor, on a full time basis. US Purchaser shall continue to employ such individuals for the period that they are leased back to US Vendor and shall provide them with salary and benefits commensurate with that provided to other Continuing Employees who perform services for US Purchaser similar to those provided by the leased individuals to the US Vendor. US Vendor shall reimburse US Purchaser for 100% of the cost of the salary and other benefits (other than severance benefits) actually provided by the US Purchaser to such individuals during the time that they are leased to US Vendor. With respect to severance benefits, upon the termination of employment with US Purchaser of any individual subject to this paragraph (d), US Purchaser shall pay severance benefits to such individuals, in accordance with the provisions of the General Cables Severance Plan subject to the requirements of subsection III(b) above. Notwithstanding any other severance obligation, the US Vendor shall reimburse US Purchaser for any additional severance benefits earned by the individual under such plan on account of his employment with the US Purchaser, from the date as of which his employment would have been terminated by the US Purchaser in the absence of this paragraph (d) until the date of his actual termination of employment by the US Purchaser (e) LEASEBACK. US Purchaser hereby reserves the right to require that up to four individuals, to be named by US Purchaser, who are employees of US Vendor after the Closing Date, be leased back to US Purchaser, for such period as required by US Purchaser, on a full time basis. US Vendor shall continue to employ such individuals for the period that they are leased back to US Purchaser and shall provide them with their existing salary and benefits. US Purchaser shall reimburse US Vendor for 100% of the cost of the salary and other benefits (other than severance benefits) actually provided by the US Vendor to such individuals during the time that they are leased to US Purchaser. With respect to severance benefits, upon the termination of employment with US Vendor of any individual subject to this paragraph (e), US Vendor shall pay severance benefits to such individuals, in accordance with the employee contracts, if any, into which they have entered with US Vendor. IV. ASSIGNMENT. (a) Pursuant to Section 19.5 of Asset Purchase Agreement: (i) Except with respect to the assets as to which the assignment set forth in Section (iii) below relates, the US Purchaser hereby assigns to BICC General Cable (USA), LLC, a Delaware limited liability company, all of its rights and delegates all of its obligations arising under the Asset Purchase Agreement, as amended by this Amendment, relating to the US Assets, and BICC General Cable (USA), LLC hereby accepts such assignment and shall assume and perform such obligations. (ii) Except with respect to the assets as to which the assignment forth in Section (iii) below relates, the Canadian Purchaser hereby assigns to BICC General Cable Company, a Nova Scotia unlimited liability company, all of its rights, and delegates all of its obligations arising under the Asset Purchase Agreement, as amended by this Amendment, relating to the Canadian Assets, and BICC General Cable Company hereby accepts such assignment and shall assume and perform such obligations. -5- 6 (iii) GK Technologies, Incorporated, as US Purchaser and Canadian Purchaser, hereby assigns to BICC General Pyrotenax Cables Ltd., an Ontario Corporation, all of its rights and delegates all of its obligations under the Asset Purchase Agreement, as amended by this Amendment, relating to the US Assets and Canadian Assets that are assets used in the Pyrotenax business conducted by the Vendors (the "Pyrotenax Assets"), and BICC General Pyrotenax Cables Ltd. hereby accepts such assignment and shall assume and perform such obligations. (b) Each of Vendors' Guarantor, US Vendor and Canadian Vendor hereby consent to the assignment set forth in this Section. (c) From and after the date hereof, BICC General Cable (USA), LLC and BICC General Pyrotenax Cables Ltd. as assignee with respect to that portion of the Pyrotenax Assets that are US Assets shall be collectively the "US Purchaser" under the Asset Purchase Agreement and BICC General Cable Company and BICC General Pyrotenax Cables Ltd. as assignee with respect to that portion of the Pyrotenax Assets that are Canadian Assets shall collectively be the "Canadian Purchaser" under the Asset Purchase Agreement. V. INDEMNITY PAYMENT. (a) Pursuant to Section 7.3.1(ii) of the Asset Purchase Agreement, the US Vendor hereby gives notice that, at Closing, a breach of the Warranty set forth in Section 3.4.2 of Schedule 8 of the Asset Purchase Agreement has occurred (such Warranty being the "SECTION 3.4.2 WARRANTY"; the Section 3.4.2 Warranty, together with any other representation or warranty contained in the Asset Purchase Agreement or the Non-North American Sale and Purchase Agreement (together with the Asset Purchase Agreement the "PURCHASE AGREEMENTS") or any Schedule to either Purchase Agreement which relates to material adverse changes in all or any portion of the Global Operations or the financial condition or results of operation thereof, being herein collectively referred to as "MAC WARRANTIES"). (b) In acknowledgment of the breach of the Section 3.4.2 Warranty and the desire of the parties to consummate the transactions contemplated by the Purchase Agreements, the parties hereto acknowledge and agree as follows: (i) At the Closing, US Purchaser shall be deemed to have made, and US Vendor shall be deemed to have accepted, without dispute, a claim for indemnification, pursuant to Section 2.3 of the Asset Purchase Agreement, in the amount of (pound) 13.6 million for Losses resulting from the breach of the Section 3.4.2 Warranty (the "SECTION 3.4.2 INDEMNITY CLAIM"). (ii) Upon receipt by the US Purchaser of a payment in respect of the Section 3.4.2 Indemnity Claim in the amount of (pound) 13.6 million (the "MAC INDEMNITY PAYMENT"), the Purchaser and the Purchaser's Guarantor, together with the Purchaser and each Relevant Purchaser (each as defined in the Non-North American Sale Purchase Agreement), shall have waived (i) all further claims any of them may have pursuant to either Purchase Agreement in respect of any Losses resulting from any breach of any MAC Warranty and (ii) any right any of them may have to terminate the Non-North American Sale and Purchase Agreement pursuant to Section 4.5 thereof as a result of any breach of any MAC Warranty. (iii) Any term or provision hereof to the contrary notwithstanding, (i) for purposes of Section 2.3.5(b) of the Asset Purchase Agreement, the Section 3.4.2 Indemnity Claim shall be deemed never to have been made, and (ii) for purposes of Section 2.3.5(c) of the Asset Purchase Agreement, such Section 3.4.2 Indemnity Claim shall be deemed to have been made and, upon receipt of the MAC Indemnity Payment, satisfied in full. -6- 7 (iv) The MAC Indemnity Payment will be made through offset against the Purchase Price payable at Closing pursuant to Section 3.1(a) of the Asset Purchase Agreement. VI. INDUSTRIAL REVENUE BOND. (a) JACKSON, TENNESSEE FACILITY. US Vendor entered into a certain lease dated as of May 1, 1991 (the "Lease"), with The Industrial Development Board of the City of Jackson, a Tennessee public nonprofit corporation (the "IDB") to finance the construction of, inter alia, a certain manufacturing facility and all improvements thereon and property therein, having an address of 19 Bobrick Drive, Jackson, Tennessee (the "Property"). Vendors' Guarantor guaranteed the obligations of US Vendor under the Lease pursuant to the terms of that certain Guaranty Agreement dated as of May 1, 1991, from Vendors' Guarantor to First American National Bank, Nashville, Tennessee, a national banking association, as trustee (the "Guaranty"). It is anticipated that as of the Closing Date, all or any consents necessary to release US Vendor and the Vendors' Guarantor from their respective obligations under the Guaranty will not have been obtained. As a result, the parties hereto have agreed as follows: (a) at Closing, US Vendor and US Purchaser will enter into a certain assignment and assumption of lease in the form attached hereto as Exhibit C pursuant to which, among other things, US Vendor will assign the Lease to US Purchaser who will perform the obligations of the tenant thereunder from and after the Closing Date, (b) at Closing, Purchaser's Guarantor will execute a certain guaranty indemnity agreement in the form attached hereto as Exhibit D pursuant to which Purchaser's Guarantor shall agree to indemnify the Vendors' Guarantor from any liability arising from performance by Vendor's Guarantor under the Guaranty as a result of acts occurring after Closing, (c) US Vendor will execute that certain certificate attached hereto as Exhibit E and (d) on or before May 31, 2000, US Purchaser shall, at its sole cost and expense, cause US Vendor and the Vendors' Guarantor and their affiliates to be released in full from their respective obligations under the Lease and the Guaranty by either: (i) obtaining the consent of the bondholders to release the US Vendor, the Vendors' Guarantor and their affiliates, if any, from their obligations under the Guaranty or (ii) defeasing the bonds. In the event that the US Vendor and the Vendors' Guarantor are not released from all obligations and Liability under the Lease and the Guaranty on or before May 31, 2000 the US Purchaser will pay to the US Vendor, or its assignee, an amount equal to all Liability then due under the Lease and the US Vendor will defease the bonds. VII. Section 1.1.6 of Schedule 12 of the Asset Purchase Agreement is hereby deleted in its entirety and replaced with the following: (a) On the Closing Balance Sheet US Vendor shall (i) establish a reserve for the total bonuses payable under the BICC Cables Corporation Management Incentive Plan and the BICC Cables Corporation Discretionary Bonus Plan to Continuing Employees ("total bonus accrual"); and (ii) supply US Purchaser with a schedule of individuals who are Continuing Employees and for whom bonuses have been accrued under the Management Incentive Plan and Discretionary Bonus Plan for the period January 1, 1999 through the Closing Date ("pre-closing period"), which schedule shall specify the name of each individual and the specific dollar amount of the total bonus accrual assigned to that individual ("individual's pre-closing accrued bonus"). (Individuals described in this paragraph (a) are referred to as "scheduled individuals"). Thereafter, at such time as US Purchaser pays bonuses to its employees for 1999 under its bonus and/or incentive programs, US Purchaser will supply US Vendor with a report that indicates (i) the portion of each scheduled individual's 1999 bonus and incentive payments from US Purchaser that are attributable to the pre-closing period (actual pre-closing bonus) and (ii) the portion attributable to the period from May 29, 1999 until December 31, 1999 (post-closing bonus). With respect to the pre-closing period, US Purchaser shall have the discretion to determine whether a scheduled individual's actual pre-closing bonus shall be less than or equal to the individual's pre-closing accrued bonus. In no event may the amount designated by the US Purchaser as the scheduled individual's actual pre-closing bonus exceed the individual's pre-closing accrued bonus. In the event that the actual pre-closing bonus of a scheduled individual (including a -7- 8 scheduled individual who receives no bonus for 1999 or for the pre-closing period) is less than his pre-closing accrued bonus, US Purchaser shall pay the difference to US Vendor. (b) MARSHALL, TEXAS GAIN SHARE PLAN. Pursuant to US Purchaser's assumption of the Marshall, Texas Gain Share Plan, US Vendor shall not pay out at Closing any amounts accrued under that Plan for the December 1, 1998 through November 30, 1999 Gain Share Period. US Purchaser shall be responsible for payment of all bonuses under that Plan for the December 1, 1998 to November 30, 1999, Gain Share Period at the normal time and in the normal manner. VIII. The US Vendor will use its reasonable efforts to close out all inventory hedges relating to copper and aluminum. For the avoidance of doubt, there is no obligation to close out any hedges relating to open purchase orders. IX. EFFECT OF AMENDMENT NO. 1. Except as expressly amended and modified herein, all other terms of the Asset Purchase Agreement shall remain in full force and effect as originally made and entered into by the parties thereto. X. GOVERNING LAW. This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of New York applicable to agreements made and to be performed wholly within such jurisdiction. XI. NECESSARY DOCUMENTS. The parties hereto agree to execute or cause to be executed at any time, any and all other documents or instruments necessary to carry out the terms of this Amendment. XII. COUNTERPARTS. This Amendment No. 1 may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument, and all signatures need not appear on any one counterpart. -8- 9 IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed as of the date first written above. BICC CABLES CORPORATION By: /s/ Hans P. Berndorff ---------------------------------- Name: Hans P. Berndorff ---------------------------------- Title: Vice President ---------------------------------- BICC CABLES CANADA INC. By: /s/ Hans P. Berndorff ---------------------------------- Name: Hans P. Berndorff ---------------------------------- Title: Vice President ---------------------------------- PYROTENAX USA INC. By: /s/ Hans P. Berndorff ---------------------------------- Name: Hans P. Berndorff ---------------------------------- Title: Vice President ---------------------------------- BICC PLC By: /s/ Peter Zinkin ---------------------------------- Name: Peter Zinkin ---------------------------------- Title: Director ---------------------------------- GK TECHNOLOGIES, INCORPORATED, in its capacity as US Purchaser and Canadian Purchaser By: /s/ Chris Virgulak ---------------------------------- Name: Chris Virgulak ---------------------------------- Title: Executive Vice President ---------------------------------- -9- 10 GENERAL CABLE CORPORATION By: /s/ Robert Siverd ---------------------------------- Name: Robert Siverd ---------------------------------- Title: Executive Vice President ---------------------------------- BICC GENERAL PYROTENAX CABLES, LTD. By: /s/ Robert Siverd ---------------------------------- Name: Robert Siverd ---------------------------------- Title: Executive Vice President ---------------------------------- BICC GENERAL CABLE (USA), LLC By: /s/ Robert Siverd ---------------------------------- Name: Robert Siverd ---------------------------------- Title: Executive Vice President ---------------------------------- BICC GENERAL CABLE COMPANY By: /s/ Robert Siverd ---------------------------------- Name: Robert Siverd ---------------------------------- Title: Executive Vice President ---------------------------------- -10- EX-2.3 4 EXHIBIT 2.3 1 Exhibit 2.3 CONFORMED COPY Dated 6 April 1999 BICC PLC and GK TECHNOLOGIES, INCORPORATED and GENERAL CABLE CORPORATION SALE AND PURCHASE AGREEMENT relating to the Energy Cables Operations of BICC plc Linklaters & Paines One Silk Street London EC2Y 8HQ tel:(+44)171 456 2000 2 AGREEMENT FOR THE SALE AND PURCHASE OF THE ENERGY CABLES OPERATIONS OF BICC PLC THIS AGREEMENT is made on 6 April 1999 BETWEEN: (1) BICC PLC a company incorporated in England and Wales, whose registered office is at Devonshire House, Mayfair Place, London WIX 5FH (the VENDOR); and (2) GK TECHNOLOGIES, INCORPORATED a company incorporated in New Jersey, the United States, whose principal place of business is at 4 Tesseneer Drive, Highland Heights, Kentucky, 41076 (the PURCHASER); and (3) GENERAL CABLE CORPORATION a company incorporated in Delaware, the United States, whose principal place of business is at 4 Tesseneer Drive, Highland Heights, Kentucky, 41076 (the PURCHASER'S GUARANTOR). IT IS AGREED as follows: 1. INTERPRETATION In this Agreement, including its Schedules, the headings shall not affect its interpretation and, unless the context otherwise requires, the provisions in this Clause 1 apply: 1.1 DEFINITIONS ACTUAL INDEBTEDNESS STATEMENTS means the Intra-Group Indebtedness Statement, the Third Party Indebtedness Statement and the Cash Statement; AGREED TERMS means in relation to any document such document in the terms agreed between the parties and signed by or on behalf of the Purchaser's Lawyers and the Vendor's Lawyers or the Vendor's Property Lawyers for the purposes of identification as that document may be amended by agreement in writing between the Purchaser and the Vendor from time to time; ASSETS means the Business Sellers' Assets and all the property, rights and assets owned and used by any of the Group Companies exclusively or primarily in 3 connection with the Operations to be sold pursuant to this Agreement or any Subsidiary Agreement; ASSOCIATED COMPANY means a company which is a subsidiary of the party concerned or which is a holding company of such party or a subsidiary of such holding company; ASSUMED LIABILITIES means the Liabilities of any of the Business Sellers to be assumed by a Relevant Purchaser under Clause 2.2 and Assumed Liability means any one of them; BALANCE SHEET DATE means 31 December 1998; BUSINESSES means those businesses carried on by the Business Sellers and comprised in the Operations (including the Assumed Liabilities), brief details of which are contained or referred to in Part 2 of Schedule 2 and BUSINESS means any one of them; BUSINESS DAY means a day on which banks are open for business in London and New York City (excluding Saturdays, Sundays and public holidays); BUSINESS SELLERS has the meaning given to it in the definition of Relevant Seller; BUSINESS SELLERS' ASSETS means all the property, rights and assets forming part of the Businesses to be sold under this Agreement or any Subsidiary Agreement; BUSINESS SELLERS' CASH BALANCES means cash in hand, or credited to any account with a bank, and securities of any description held by or on behalf of any of the Business Sellers as at close of business on the Completion Date; BUSINESS SELLERS' INTELLECTUAL PROPERTY means all rights and interests owned by any of the Business Sellers in Intellectual Property (details of which are set out in Parts A, B and C of Schedule 15) and all other Intellectual Property which at or before Completion is owned by a member of the Vendor's Group and used exclusively or primarily in connection with the Operations; 4 BUSINESS SELLERS' KNOW-HOW means all rights and interests owned by any member of the Vendor's Group in Know-how which at or before Completion is used exclusively or primarily in connection with the Operations; BUSINESS SELLERS' LEASED PROPERTIES means the Leased Properties owned by any Business Sellers and BUSINESS SELLER'S LEASED PROPERTY means any of them; BUSINESS SELLERS' MOTOR VEHICLES means all the motor vehicles owned by any of the Business Sellers and used exclusively or primarily in connection with the Operations at Completion; BUSINESS SELLERS' MOVEABLE ASSETS means the Business Sellers' Plant and Machinery, the Business Sellers' Office Equipment and the Business Sellers' Motor Vehicles; BUSINESS SELLERS' OFFICE EQUIPMENT means the Office Equipment owned by any of the Business Sellers and used exclusively or primarily in connection with the Operations at Completion but excluding Office Equipment forming part of any of the Properties; BUSINESS SELLERS' PLANT AND MACHINERY means the Plant and Machinery owned by any of the Business Sellers and used exclusively or primarily in connection with the Operations at Completion but excluding Plant and Machinery forming part of any of the Properties; BUSINESS SELLERS' PROPERTIES means the Properties owned or leased by any Business Sellers; CASH DETERMINATION DATE means the date on which the process described in Part 2 of Schedule 7 for the preparation of the Cash Statement is complete; CASH STATEMENT means the statement of the Relevant Group Companies' Cash Balances to be prepared pursuant to Clause 9.5 in accordance with the provisions of Part 2 of Schedule 7; CLAIMS means all rights and claims of any of the Business Sellers arising at any time (whether before or after Completion) out of or in connection with the Operations 5 (whether arising under any warranties, conditions, guarantees, indemnities, insurance policies, contracts, agreements (in each case whether express or implied) or otherwise howsoever) in so far as they relate exclusively (or primarily) to any of the Business Sellers' Assets or any Assumed Liability; COMBINED ACCOUNTS means the aggregated accounts relating to the Operations extracted from those audited by Arthur Andersen relating to the Global Operations for the twelve-month financial period ended on the Balance Sheet Date in the agreed terms; COMPANIES means the companies or partnership interests listed in column (2) of Part 1, paragraph 1 of Schedule 2, and Company means any one of them; COMPANIES EMPLOYEES means the persons employed by any of the Group Companies at Completion and, where applicable, at any Subsequent Completion; COMPLETION means completion of the sale and purchase of the Shares, Businesses and Assets in the Jurisdictions specified in Part A of Part 1 of Schedule 6 and of any other Shares the sale and purchase of which is completed on the same date pursuant to Clause 6.1 and Schedule 6; COMPLETION DATE means the date on which Completion takes place; CONTRACTS means (i) the Customer Contracts, the Supplier Contracts and the Licence Agreements; (ii) all other contracts, undertakings, arrangements and agreements entered into prior to Completion by or on behalf of any of the Business Sellers exclusively or primarily in connection with the Operations in each case to the extent that at Completion the same remain to be completed or performed or remain in force but excluding this Agreement, the Subsidiary Agreements and employment and other agreements with Employees; CUSTOMER CONTRACTS means all contracts and agreements entered into prior to Completion by or on behalf of any of the Business Sellers with customers for the manufacture and/or sale, letting on hire, rental of goods or other supply or the provision of services by any of the Business Sellers exclusively or primarily in 6 connection with the Operations in each case to the extent that at Completion there are any obligations relating thereto (other than obligations as to the warranting or guaranteeing of goods or services supplied or provided prior to the date hereof) which remain to be completed or performed by the relevant Business Seller; DATA ROOM means the data room at the offices of the Vendor's Lawyers; DISCLOSURE LETTER means the letter of even date with this Agreement in agreed terms from the Vendor to the Purchaser disclosing (i) information constituting exceptions to the Warranties and (ii) details of other matters referred to in this Agreement; EMPLOYEE BENEFIT ARRANGEMENTS means the schemes or arrangements operated by the Business Sellers or Group Companies or in which any Business Seller or Group Company participates in respect of any Employee or any past employee of a Group Company or persons dependent on any such Employee or past employee providing for benefits payable on retirement, death, disability or voluntary withdrawal from, or involuntary termination of, employment (other than State or statutory or other mandatory agreements (the STATE SCHEMES) providing social security, unemployment insurance, workers' compensation and other benefits payable on retirement, death, disability or voluntary withdrawal from, or involuntary termination of, employment); EMPLOYEES means the Companies Employees and all the persons employed by any of the Business Sellers wholly in connection with the Businesses as at Completion and, where applicable, at any Subsequent Completion; EMPLOYMENT COSTS means a sum equivalent to the aggregate of (i) the amount payable or paid in respect of the employment of an Employee (including, but not limited to, salary, wages, tax and social security contributions, employer's pension contributions, bonus, insurance premium, payments or allowances or any other consideration for employment) and (ii) the cost of providing any non-cash benefits, which the employer is required to provide, by law or contract in connection with such employment (including, but not limited to, other employee benefit provisions); EMPLOYMENT LIABILITIES means in relation to any Employee, any and all Losses arising out of or connected with his or her employment or the employment 7 relationship, or termination of his or her employment, or of the employment relationship (including, but not limited to, all Losses in connection with any claim for redundancy pay, or damages or compensation for unfair or wrongful dismissal or breach of contract); ENCUMBRANCE means any claim, charge, mortgage, security, lien, option, equity, power of sale, hypothecation or other third party rights; EQUITY SHARE CAPITAL means, in relation to a company, its issued share capital excluding any part of that capital which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution; ESTIMATED CASH means the estimate of the aggregate of the Relevant Group Companies' Cash Balances set out in the Estimated Cash Statement; ESTIMATED CASH STATEMENT means the statement of Estimated Cash to be prepared pursuant to Clause 5.5 in accordance with the provisions of Part 2 of Schedule 7; ESTIMATED INDEBTEDNESS STATEMENTS means the Expected Intra-Group Indebtedness Statement, the Estimated Third Party Indebtedness Statement and the Estimated Cash Statement; ESTIMATED THIRD PARTY INDEBTEDNESS means the estimate of Third Party Indebtedness set out in the Estimated Third Party Indebtedness Statement; ESTIMATED THIRD PARTY INDEBTEDNESS STATEMENT means the statement of Estimated Third Party Indebtedness to be prepared pursuant to Clause 5.5 in accordance with the provisions of Part 2 of Schedule 7; EUROPEAN COUNTRY means any member state of the European Union at the date of this Agreement; EUROPEAN EMPLOYEE means any Employee ordinarily working in any European Country including any such employee who is temporarily seconded on an ex-patriate basis to any of the Group Companies (not being a Companies Employee) and whose name is on the list in the agreed terms, which list shall be updated to Completion to 8 reflect changes in the ordinary course of business between the date of this Agreement and the Completion Date; EXCLUDED ASSETS means the assets excluded from the sale and purchase pursuant to this Agreement and the Subsidiary Agreements and described or referred to in Schedule 17; EXCLUDED LIABILITIES means all Liabilities of any Business Seller except for any Assumed Liabilities; EXPECTED INTRA-GROUP INDEBTEDNESS means the expected Intra-Group Indebtedness set out in the Expected Intra-Group Indebtedness Statement; EXPECTED INTRA-GROUP INDEBTEDNESS STATEMENT means the statement of Expected Intra-Group Indebtedness to be prepared pursuant to Clause 5.5 in accordance with the provisions of Part 2 of Schedule 7; GENERAL SERVICES AND SUPPLY AGREEMENTS means the various service and supply agreements to be entered into between the members of the Vendor's Group, the Relevant Business Sellers and certain other parties (as the case may be) covering such matters and in such terms as the Purchaser may reasonably consider appropriate having regard to the terms of such agreements which may have been previously negotiated with third parties; GLOBAL OPERATIONS means the Operations together with the "Operations" (as such term is defined in the North American Sale and Purchase Agreement) taken as a whole; GOODWILL means the goodwill of each of the Business Sellers in connection with the Operations or part thereof together with the exclusive right (so far as the relevant Business Seller can grant the same) for the Relevant Purchaser to represent itself as carrying on the Operations or relevant part thereof in succession to the relevant Business Seller; 9 GROUP OR GROUP COMPANIES means each of the Companies and the Subsidiaries and GROUP COMPANY means any one of them but shall exclude any Company or Subsidiary in respect of which Subsequent Completion does not take place; INTELLECTUAL PROPERTY means trade marks, service marks, trade names, logos, get-up, patents, inventions, registered and unregistered design rights, copyrights, semi-conductor topography rights, rights of extraction relating to databases and all other similar proprietary rights which may subsist in any part of the world (but excluding Know-how) including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations; INTERNAL REORGANISATIONS means the pre-Completion internal fiscal and operational reorganisations of the Vendor's Group involving the Group Companies and the Businesses referred to in Schedule 4; INTRA-GROUP INDEBTEDNESS means the aggregate net amount of all outstanding loans of the Relevant Group Companies from or to any member of the Vendor's Group (save that in the case of Majority Owned Group Companies only the Proportionate Share of such outstanding loans shall be included), as at the close of business on the Completion Date and prepared pursuant to Clause 9.5 and Part 2 of Schedule 7 but excluding any Relevant Group Companies' Cash Balances, Third Party Indebtedness and trading debt or liabilities arising in the ordinary course; INTRA-GROUP INDEBTEDNESS DETERMINATION DATE means the date on which the process described in Part 2 of Schedule 7 for the preparation of the Intra-Group Indebtedness Statement is complete; INTRA-GROUP INDEBTEDNESS STATEMENT means the statement of Intra-Group Indebtedness to be prepared pursuant to Clause 9.5 in accordance with the provisions of Part 2 of Schedule 7; JURISDICTIONS means the United Kingdom, Italy, Spain, Portugal, Germany, Norway, Brazil, Dubai, Zimbabwe, Egypt, Angola, Mozambique, India, New Zealand, Malaysia, Singapore, Fiji, Indonesia, China, Saudi Arabia, Argentina, Bahrain, Taiwan, Thailand, Hong Kong and Jersey; 10 KNOW-HOW means confidential industrial, financial and commercial information and techniques in any form (including paper, electronically stored data, magnetic media, film and microfilm) and information and techniques not reduced to a tangible form including (without limiting the foregoing) drawings, formulae, test results, reports, project reports and testing procedures, shop practices, instruction and training manuals, tables of operating conditions, market forecasts, specifications, quotations, tables, lists and particulars of customers and suppliers, marketing methods and procedures and advertising copy; LEASE means the lease of the relevant Business Seller's Leased Property; LEASED PROPERTIES means the leased properties brief details of which are set out in Part 2 of Schedule 13 and Leased Property means any one of them; LIABILITIES means all liabilities, duties and obligations of every description, whether deriving from contract, common law, statute or otherwise, whether present or future, actual or contingent, ascertained or unascertained or disputed and whether owed or incurred severally or jointly or as principal or surety; LICENCE AGREEMENTS means the licence agreements relating to Intellectual Property and Know-how brief details of which are set out in Schedule 15 and other licences entered into prior to Completion by or on behalf of any of the Business Sellers exclusively or primarily in connection with the Operations in each case which remain in force at Completion or have outstanding rights and obligations; LOSSES means all losses, Liabilities, costs (including without limitation legal costs), charges, expenses, actions, proceedings, claims and demands; MAJORITY OWNED GROUP COMPANIES means any Group Company (other than the Wholly Owned Group Companies) in which the Vendor, directly or indirectly, owns more than 50 per cent. of the Equity Share Capital and MAJORITY OWNED GROUP COMPANY means any one of them; 11 MANAGEMENT ACCOUNTS means the unaudited management accounts relating to each of the Businesses and each of the Group Companies for the financial period ending on 28 February 1999; MATERIAL ADVERSE EFFECT means (i) any adverse change or effect to the business, properties, assets, condition (financial or otherwise) or results (whether current or future) of the Global Operations occurring after the date hereof which, individually or in the aggregate, has resulted in or is reasonably likely to result in a reduction in the fair market value of the Global Operations of (pound)50,000,000 or more PROVIDED THAT the financial implications of any failure to win a contract or tender by any Business Seller or Group Company shall not be taken into account in determining whether the fair market value of the Global Operations has been reduced; or (ii) any fire, flood, explosion or other similar calamity occurring after the date hereof in consequence of which substantially all of the manufacturing operations at the Erith site (details of which are set out in paragraph 1 Part 2 of Schedule 14) are suspended, such suspension to be for a period likely to be greater than three months; MATERIAL CONTRACT shall have the meaning set out in paragraph 5.3.2 of Schedule 8; MINORITY GROUP COMPANIES means Group Companies other than Relevant Group Companies; MOVEABLE ASSETS means the Business Sellers' Moveable Assets and all motor vehicles, Office Equipment and Plant and Machinery owned and used by any of the Group Companies; NET ASSET STATEMENT has the meaning given to it in Clause 9.1; NET ASSET VALUE means the aggregate of the amounts of the Assets less the aggregate of the amounts of the Liabilities of the Operations as shown in the Net Asset Statement; NON-LEASED PROPERTIES means the properties, brief details of which are set out in Part 1 of Schedule 13 and NON-LEASED PROPERTY means any one of them; 12 NORTH AMERICAN SALE AND PURCHASE AGREEMENT means the Sale and Purchase Agreement entered into on the date hereof between the Vendor and the Purchaser in connection with the sale of the Vendor's energy cables operations in the United States and Canada; OFFICE EQUIPMENT means loose or severable items of office equipment, furniture and furnishings; OPERATIONS means the businesses carried on in the Jurisdictions by the Business Sellers and the Group Companies as described in Schedule 1; OTHER EMPLOYEES means the Employees (not being Companies Employees or European Employees), if any; OVERSEAS PROPERTIES means any of the Properties brief details of which are set out in Part 3 of Schedule 13 and OVERSEAS PROPERTY means any one of them; PAYMENT ACCOUNT DETAILS means, in relation to any payment to be made under or pursuant to this Agreement or any Subsidiary Agreement, the name, account number, sort code, account location and other details specified by the payee and necessary to effect payment (whether by telegraphic or other electronic means of transfer) to the payee; PLANT AND MACHINERY means loose or severable plant and machinery, tools, moulds, dyes and other equipment (excluding Office Equipment); PROPERTIES means the Non-Leased Properties, the Leased Properties and the Overseas Properties and PROPERTY means any one of them; PROPORTIONATE SHARE means the proportion which the Equity Share Capital of the relevant corporate entity held by the relevant member of the Vendor's Group bears to the entire Equity Share Capital of the relevant corporate entity; PURCHASE PRICE has the meaning given in Clause 3.1; PURCHASER'S GROUP means the Purchaser and any of its subsidiaries or holding company from time to time (including, with effect from Completion or any Subsequent 13 Completion, as the case may be, the Group Companies which have been acquired by the Purchaser with effect from such completion); PURCHASER'S LAWYERS means Norton Rose of Kempson House, PO Box 570, Camomile Street, London EC3A 7AN; RECEIVABLES means the book and other debts receivable by or owing to any of the Business Sellers to the extent that they arise exclusively or primarily in the course of the Operations (and whether or not yet due or payable) at Completion and interest thereon but excluding: (i) debts owing by any employee who is not an Employee; (ii) debts due from any relevant Taxation authority in respect of Taxation including, for the avoidance of doubt, any bond or other security issued by any Taxation authority or other governmental agency representing any such debts; cash and cash equivalents credited to any account of any Business Seller, wherever held; and (iii) debts not included in the Net Asset Statement; RELEVANT GROUP COMPANY means any Wholly Owned Group Company or Majority Owned Group Company; RELEVANT GROUP COMPANIES' CASH BALANCES means cash in hand held by, or credited to any account or on deposit with a bank on behalf of any Relevant Group Company as at the close of business on the Completion Date (save that in the case of Majority Owned Group Companies, only the Proportionate Share of such cash shall be included in such balances); RELEVANT PURCHASER means the Purchaser and in relation to (i) each of the Companies referred to in column (2) of Part 1, paragraph 1 of Schedule 2 and (ii) each of the Businesses referred to in column (2) of Part 2 of Schedule 2, any member of the Purchaser's Group nominated prior to Completion by the Purchaser as the purchaser of the Shares in such Companies or of such Businesses, such nomination 14 being with the Vendor's consent (such consent not to be unreasonably withheld) and so that each such purchaser shall be referred to herein as a SHARE PURCHASER or BUSINESS PURCHASER as the context requires; RELEVANT SELLER means in relation to (i) the Shares in each of the Companies referred to in column (2) of Part 1, paragraph 1 of Schedule 2, the relevant seller whose name is set out or referred to opposite that Company in column (1) of that Schedule (each a SHARE SELLER) and (ii) each of the Businesses or Assets referred to in column (2) of Part 2 of Schedule 2, the relevant seller whose name is set out opposite that Business or Asset in column (1) of that Schedule (each a BUSINESS SELLER); REPORTING ACCOUNTANTS means a firm of Chartered Accountants independent of the Vendor and the Purchaser to be agreed by the Vendor 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 for the time being of the Institute of Chartered Accountants in England and Wales; RETAINED INTELLECTUAL PROPERTY means any Intellectual Property (other than Business Sellers Intellectual Property) owned by any member of the Vendor's Group which is necessary for the carrying on of the Operations; RETAINED KNOW-HOW means any Know-how (other than Business Sellers Know-how) owned by any member of the Vendor's Group which is necessary for the carrying on of the Operations; SENIOR EMPLOYEE means any Employee employed in relation to the Operations on an annual cash salary or fee (on the basis of full-time employment) in excess of (pound)60,000 or local equivalent; SHARES means the shares, quotas or other securities in the capital of each of the Companies or partnership interests being sold by the relevant Share Sellers as set out in column (2) of Part 1, paragraph 1 of Schedule 2; SHARE SELLERS has the meaning given to it in the definition of Relevant Seller; 15 SPECIAL CONDITIONS OF SALE means the special conditions set out at Part 3 of Schedule 14 relating to the Business Sellers' Properties in England and Wales; STOCK means the stock-in-trade and work-in-progress owned by any of the Business Sellers exclusively or primarily in connection with the Operations at the Completion Date wherever held; SUBSEQUENT COMPLETION means, in relation to those Shares in the Jurisdictions specified in Part B of Part 1 of Schedule 6 the sale and purchase of which is not completed on or with effect from the Completion Date, the completion of the sale and purchase of such Shares pursuant to Clause 6.1 and Schedule 6 (to the extent applicable); SUBSEQUENT COMPLETION DATE means the date on which any Subsequent Completion takes place; SUBSIDIARY AGREEMENTS means the agreements (if any) substantially in the agreed terms required in order to effect the sale and purchase of Shares and/or Businesses outside the United Kingdom in the Jurisdictions referred to therein, and, to the extent required (or as agreed by the parties), of any Business Sellers' Assets in the United Kingdom, to be entered into between the Relevant Sellers and the Relevant Purchasers on Completion or any Subsequent Completion and SUBSIDIARY AGREEMENT means any one of them; SUBSIDIARIES means the subsidiaries, subsidiary undertakings and associated undertakings of the Companies, details of which are contained in Part 1, paragraph 2 of Schedule 2; SUBSTANTIAL CONTRACTS means those contracts listed in Schedule 19; SUPPLIER CONTRACTS means all contracts and agreements entered into prior to Completion by or on behalf of any of the Business Sellers with suppliers exclusively or primarily in connection with the Operations (i) for the sale of goods or the provision of services to the extent that at Completion the same remain to be completed or performed or (ii) for the letting on hire or rental or other supply of the Business Sellers' 16 Motor Vehicles, the Business Sellers' Office Equipment or the Business Sellers' Plant and Machinery which remain in force at Completion; TAXATION OR TAX means all forms of taxation whether direct or indirect and whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value or other reference and statutory, governmental, state, provincial, local governmental or municipal impositions, duties, contributions, rates and levies (including without limitation social security contributions and any other payroll taxes), whenever and wherever imposed (whether imposed by way of a withholding or deduction for or on account of tax or otherwise) and in respect of any person and all penalties, charges, costs and interest relating thereto; TAX DEED OF COVENANT means the deed of covenant against Liability to Taxation in the agreed terms to be entered into by the Vendor on behalf of itself and the other Relevant Sellers indemnifying the Purchaser on behalf of itself and the other Relevant Purchasers in respect of the Group Companies; THIRD PARTY CONSENTS means any consents, licences, approvals, permits, authorisations or waivers required from third parties (including but not limited to any governmental, administrative, judicial, or regulatory authority or organisation) and THIRD PARTY CONSENT means any one of them; THIRD PARTY INDEBTEDNESS means the aggregate amount of all outstanding loans owing by any Relevant Group Company (save that in the case of Majority Owned Group Companies only the Proportionate Share of such outstanding loans shall be included) to any third party (other than a member of the Vendor's Group or the Group) as at the close of business on the Completion Date but excluding any Relevant Group Companies' Cash Balances, Intra-Group Indebtedness and trading debt or liabilities arising in the ordinary course; THIRD PARTY INDEBTEDNESS DETERMINATION DATE means the date on which the process described in Part 2 of Schedule 7 for the preparation of the Third Party Indebtedness Statement is complete; 17 THIRD PARTY INDEBTEDNESS STATEMENT means the statement of Third Party Indebtedness to be prepared pursuant to Clause 9.5 in accordance with the provisions of Part 2 of Schedule 7; TRANSFER PROVISIONS means in relation to a European Employee, the legislation implementing the provisions of EEC Directive No.77/187 dated 14.2.1977 applicable to such European Employees' terms and conditions of employment; UK BUSINESS means the Business carried on by the Vendor and its Subsidiaries in the United Kingdom as described in paragraph 1 of Schedule 1; VAT means Value Added Tax and elsewhere within the European Community such Tax as may be levied in accordance with (but subject to derogations from) the Directive 77/338/EC and outside the European Community any Taxation levied by reference to added value or sales; VENDOR'S GROUP means the Vendor and any subsidiary undertaking of the Vendor from time to time (other than the Group Companies except, on or after Completion or any Subsequent Completion, those Group Companies which are not acquired by the Purchaser at or with effect from such completion); VENDOR'S LAWYERS means Linklaters & Paines of One Silk Street, London EC2Y 8HQ; VENDOR'S PROPERTY LAWYERS means Beachcroft Stanleys of 100 Fetter Lane, London EC1A 1BN; WARRANTIES means the warranties contained or referred to in Schedule 8 and WARRANTY means any one of them; WHOLLY OWNED GROUP COMPANIES means the Group Companies which are wholly owned directly or indirectly by the Vendor and WHOLLY OWNED GROUP COMPANY means any one of them. 18 1.2 SUBORDINATE LEGISLATION Any reference to a statutory provision shall include any subordinate legislation made from time to time under that provision which is in force at the date of this Agreement. 1.3 MODIFICATION ETC. OF STATUTES Any reference to a statutory provision shall include such provision as from time to time modified or re-enacted or consolidated whether before or after the date of this Agreement so far as such modification, re-enactment or consolidation applies or is capable of applying to any transactions entered into under this Agreement prior to Completion and (so far as Liability thereunder may exist or can arise) shall include also any past statutory provision (as from time to time modified, re-enacted or consolidated) which such provision has directly or indirectly replaced, except in any case to the extent that any statutory provision made or enacted after the date of this Agreement would create or increase a Liability of the Relevant Sellers under this Agreement, any Subsidiary Agreement or the Tax Deed of Covenant. 1.4 HOLDING COMPANIES ETC. 1.4.1 A HOLDING COMPANY means a company which holds or controls, whether alone or pursuant to an agreement with other shareholders, a majority of the voting rights in another company, its subsidiary, or, being a member of that other company, has the right to appoint or remove a majority of its board of directors; 1.4.2 A PARENT UNDERTAKING means an undertaking which holds or controls, whether alone or pursuant to an agreement with other shareholders, a majority of the voting rights in another company, ITS SUBSIDIARY UNDERTAKING, or, being a member of that other undertaking, has the right to appoint or remove a majority of its board of directors or has the right to exercise a dominant influence over the undertaking pursuant to the undertaking's constitutional documents or pursuant to a control contract. 19 1.5 INTERPRETATION ACT 1978 The Interpretation Act 1978 shall apply to this Agreement in the same way as it applies to an enactment. 1.6 SCHEDULES ETC. References to this Agreement shall include any Schedules to it and references to Clauses and Schedules are to Clauses of and Schedules to this Agreement. 1.7 ENGLISH LEGAL TERMS References to any English legal term or concept (including, without limitation, those for any action, remedy, method of judicial proceeding, document, statute, court official, governmental authority or agency) 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. 1.8 INFORMATION Any reference to books, records or other information means books, records or other information in any form including paper, electronically stored data, magnetic media, film and microfilm. 1.9 VENDOR'S KNOWLEDGE Any statement qualified by the expression TO THE BEST KNOWLEDGE OF THE VENDOR or SO FAR AS THE VENDOR IS AWARE or any similar expression shall, insofar as such statement is referable to any particular Jurisdiction, be deemed to refer to the knowledge of the Vendor having made due and careful enquiry of those persons set out in column (2) Schedule 21 in relation to those Warranties set out in column (1). 1.10 CURRENCY CONVERSION Any amount to be converted from one currency into a second currency for the purposes of this Agreement (other than for the purposes of the Net Asset Statement) shall be converted into an equivalent amount at the Relevant Date of such second 20 currency as calculated by reference to the Exchange Cross Rate Table as published in the Financial Times, London Edition, prevailing at the Relevant Date. The RELEVANT DATE for the purposes of the definition of SENIOR EMPLOYEE shall be 31 December 1998, for the purposes of the definition of MATERIAL ADVERSE EFFECT shall be the date on which the Purchaser serves its Termination Notice pursuant to Clause 4.5 and for the purposes of Clause 8.2 shall be the date on which the relevant claim was made (or, in any case, if such Exchange Cross Rate Table is not published on any such date, the next following date on which such table is published). 2 AGREEMENT TO SELL THE OPERATIONS 2.1 SALE AND PURCHASE OF OPERATIONS 2.1.1 Subject to Clause 4, on Completion, the Vendor shall sell, or procure to be sold by each Relevant Seller in each case pursuant to the relevant Subsidiary Agreement or (in the case of any Asset which is not the subject of a Subsidiary Agreement) this Agreement, and the Purchaser shall purchase, or procure that there are purchased by each Relevant Purchaser, with the benefit of the warranties and undertakings contained in this Agreement free from all Encumbrances (except as expressly provided in this Agreement or specifically disclosed in the Disclosure Letter) and together with all rights and advantages attaching thereto as at Completion (or, as the case may be, any Subsequent Completion), the whole of the Operations, comprising the Shares and the Businesses as a going concern, except as otherwise expressly provided in Clause 2.1.3. 2.1.2 Without prejudice to the generality of Clause 2.1.1 and subject to Clause 2.1.3, there shall be included in the sale under this Agreement (or, where relevant, under the Subsidiary Agreements) the following: (i) the Shares; (ii) the Stock; 21 (iii) the benefit of the Contracts (subject, save as provided in this Agreement, to the burden of the same); (iv) the Business Sellers' Properties (on the terms set out in Part 1 of Schedule 14); (v) the Goodwill; (vi) the Business Sellers' Intellectual Property and the Business Sellers' Know-how (each subject to Clause 18.5); (vii) the Business Sellers' Moveable Assets; (viii) the benefit (so far as the same can lawfully be assigned or transferred to or held in trust for the Relevant Purchaser) of the Claims; (ix) the Receivables; and (x) all books of account and records and other property, rights and assets owned and used exclusively or primarily in connection with the Operations at Completion (other than any property, rights or assets owned by any Group Company). 2.1.3 The Excluded Assets shall be excluded from the sale and purchase pursuant to this Agreement or, where relevant, the Subsidiary Agreements. 2.2 ASSUMPTION OF LIABILITIES 2.2.1 Subject to Clauses 2.2.2 and 2.2.3, the Purchaser shall, or shall procure that the other Relevant Purchasers shall, assume, duly and punctually pay, satisfy, discharge, perform or fulfil all Liabilities of the Business Sellers: (i) arising under the Contracts; (ii) expressly assumed by the Relevant Purchasers under this Agreement; and (iii) any other Liabilities of the Business Sellers, but only to the extent that they are taken into account in the calculation of, or provided for in, the Net Asset Statement. 22 2.2.2 Nothing in this Clause 2 shall (unless the relevant Liability has been taken into account in the calculation of, or provided for in, the Net Asset Statement): (i) require the Purchaser or any Relevant Purchaser to perform any obligation or honour any Liability of any Business Seller falling due for performance, or which should have been performed, prior to Completion; or (ii) subject to Clause 12, impose any obligation on the Purchaser or any Relevant Purchaser for or in respect of any product delivered by any Business Seller or any service performed by any Business Seller prior to Completion. 2.2.3 Nothing in this Agreement shall require the Purchaser to assume any Liabilities in relation to any countries which assumption would be in violation of US export control regulations. 2.2.4 The Excluded Liabilities shall be excluded from the sale and purchase pursuant to this Agreement and the Subsidiary Agreements. 2.3 INDEMNITIES 2.3.1 The Vendor shall, or shall procure that each other Relevant Seller shall, indemnify and keep indemnified the Purchaser and each other Relevant Purchaser against: (i) any Liability of any Relevant Seller (excluding any liability in respect of Tax) which is not an Assumed Liability including any such Liability which is deemed to be, or becomes, a Liability of the Purchaser and/or any other Relevant Purchaser by virtue of any applicable law and which is not otherwise assumed by the Purchaser and/or any other Relevant Purchaser under this Agreement or any Subsidiary Agreement; (ii) any Losses which the Purchaser and/or any other Relevant Purchaser may suffer by reason of the Purchaser and/or any other Relevant 23 Purchaser taking any reasonable action to avoid, resist or defend against any Liability referred to in Clause 2.3.1(i); and (iii) subject to the provisions of the Tax Deed of Covenant, any liability in respect of Tax which the Purchaser and each Relevant Purchaser is indemnified against pursuant to the Tax Deed of Covenant. 2.3.2 The Purchaser shall, or shall procure that each other Relevant Purchaser shall, indemnify and keep indemnified each Business Seller against: (i) all Assumed Liabilities and any Liability of the Purchaser and/or any other Relevant Purchaser and/or any other person incurred in the course of carrying on the Operations after Completion including, for the avoidance of doubt, any such Liability which is or is deemed to be or becomes a Liability of any Business Seller by virtue of any applicable law; and (ii) any Losses which any Business Seller may suffer by reason of such Business Seller taking any reasonable action to avoid, resist or defend against any Liability referred to in Clause 2.3.2(i); Provided that no Relevant Purchaser shall be liable under this Clause 2.3.2 to the extent such Relevant Purchaser has a valid claim against the Vendor or other Business Seller under this Agreement or the Tax Deed of Covenant in respect of the Liability in question. 2.4 SUBSIDIARY AGREEMENTS 2.4.1 The Vendor shall, and shall procure that each other Relevant Seller shall, and the Purchaser shall, and shall procure that each other Relevant Purchaser shall, enter into the relevant Subsidiary Agreement on Completion or, if applicable, any Subsequent Completion. 2.4.2 The Purchaser agrees for itself and each of the other Relevant Purchasers that no claim shall be made under the Subsidiary Agreements and, accordingly, any claim which could otherwise be made thereunder shall be 24 made under this Agreement or, as the case may be, the Tax Deed of Covenant, in each case subject to the limitations contained in this Agreement or the Tax Deed of Covenant. 2.4.3 To the extent that the provisions of this Agreement are inconsistent with or additional to the provisions of a Subsidiary Agreement, the provisions of this Agreement shall prevail and the Vendor and the Purchaser shall procure that the provisions of the relevant Subsidiary Agreement are adjusted to the extent necessary to give effect to the provisions of this Agreement and/or that the Relevant Seller and the Relevant Purchaser comply with the provisions of this Agreement as though they were bound by such provisions in place of the provisions of the relevant Subsidiary Agreement. 2.4.4 If there is an adjustment under Clause 3.2 of this Agreement which relates to the part of the Operations which is the subject of such Subsidiary Agreement, then the Vendor and the Purchaser will procure that the Relevant Seller and Relevant Purchaser enter into a supplemental agreement reflecting such adjustment, if appropriate. 2.4.5 As soon as reasonably practicable hereafter and in any event before Completion, the Vendor shall procure that the Relevant Sellers shall, and the Purchaser shall procure that the Relevant Purchasers shall, incorporate in the relevant Subsidiary Agreements (to the extent not already so incorporated) the terms on which the transfer of each relevant Property outside the United Kingdom is to be dealt with. 2.4.6 The Vendor and the Purchaser shall enter into an agreement for lease (the PRESCOT AGREEMENT) substantially in the form attached as Annexure [ ] (save where specified therein as being "to be agreed") in respect of part of Prescot (as defined in paragraph 3 of Part 2 of Schedule 14) as soon as reasonably practicable after the date of this Agreement. 25 3 CONSIDERATION 3.1 AMOUNT AND PAYMENT The aggregate consideration for the purchase of the Operations under this Agreement and each Subsidiary Agreement shall be an amount which is equal to: 3.1.1 (pound)170,600,000 (ONE HUNDRED AND SEVENTY MILLION SIX HUNDRED THOUSAND POUNDS); 3.1.2 less the Third Party Indebtedness; 3.1.3 less the amount of Intra-Group Indebtedness (where the aggregate amount owed by the Relevant Group Companies to members of the Vendor's Group exceeds the aggregate amount owed by members of the Vendor's Group to Relevant Group Companies) or, as the case may be, plus the amount of Intra-Group Indebtedness (where the reverse is the case); 3.1.4 plus the amount of the Relevant Group Companies' Cash Balances (the PURCHASE PRICE) (subject to adjustment as expressly provided in this Agreement), allocated as set out in Schedule 3. The consideration is exclusive of any VAT and any transfer taxes in respect of which the provisions of Schedule 10 shall apply. The Purchase Price shall be paid by the Purchaser on behalf of itself and the other Relevant Purchasers to the Vendor on behalf of itself and the other Relevant Sellers, subject to any legal requirements under any Subsidiary Agreement for any direct payments thereunder or as otherwise agreed by the Purchaser and the Vendor. 3.2 ADJUSTMENTS The Purchase Price may be reduced or increased in accordance with the provisions of Clause 9 or in accordance with any other provisions of this Agreement stated to take effect as an adjustment to the Purchase Price. 26 3.3 METHOD OF PAYMENT Wherever in this Agreement or any Subsidiary Agreement provision is made for payment by one party (the PAYER) to another (the PAYEE), such payment shall be made by telegraphic transfer in immediately available funds in the currencies and to the account(s) specified in the Payment Account Details of the payee unless the payee by notice to the payer, not later than three Business Days prior to the due date for payment, elects to be paid by banker's draft drawn on any international bank reasonably acceptable to the payer. Payment of such sum shall be a good discharge to the payer (and those on whose behalf such payment is made) of its 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 consideration as between the Relevant Sellers, in the case of a payment to the Vendor, or as between the Relevant Purchasers, in the case of a payment to the Purchaser. 3.4 REDUCTION OF CONSIDERATION If any payment is made by any Relevant Seller to any Relevant Purchaser in respect of any claim against any Relevant Seller for any breach of this Agreement, any Subsidiary Agreement or the Tax Deed of Covenant, the payment shall be made by way of adjustment of the consideration paid by the Purchaser for the Operations under this Agreement and any relevant Subsidiary Agreement and the Purchase Price shall be deemed to have been reduced by the amount of such payment. 4 CONDITIONS 4.1 CONDITIONS PRECEDENT Completion of this Agreement is conditional upon: 4.1.1 the passing at a general meeting of the Vendor of a resolution to approve the transactions contemplated by this Agreement; 27 4.1.2 the North American Sale and Purchase Agreement becoming unconditional in accordance with its terms (other than the satisfaction of any condition relating to this Agreement); 4.1.3 the Purchaser receiving written confirmation from the Office of Fair Trading that, on the information at present before him, the Secretary of State has decided not to refer its proposed acquisition of the Business (to the extent carried on in the United Kingdom) to the Competition Commission under the Fair Trading Act 1973; and 4.1.4 the conditions set out in Part 1 of Schedule 5 in relation to the Companies specified therein having been satisfied . 4.2 RESPONSIBILITY FOR SATISFACTION 4.2.1 The Vendor hereby undertakes to use all reasonable endeavours to ensure the satisfaction of the condition set out in Clause 4.1.1 as soon as reasonably practicable after the date hereof subject to compliance by the directors of the Vendor with their fiduciary duties. 4.2.2 The Vendor undertakes to the Purchaser that it will, as soon as reasonably practicable, despatch a circular to the shareholders of the Vendor so as to inform them of this Agreement and so as to convene the general meeting of the Vendor referred to in Clause 4.1.1 on or before 15 May 1999. 4.2.3 The Vendor and the Purchaser undertake to each other that they will use their respective reasonable endeavours to procure that the condition set out in Clause 4.1.2 is satisfied as soon as reasonably practicable. 4.2.4 The Purchaser hereby undertakes to use all reasonable endeavours to ensure satisfaction of the conditions set out in Clauses 4.1.3 and 4.1.4 as soon as reasonably practical after the date hereof and in relation to the condition specified in Clause 4.1.3 shall shall make a notification to the Director General of Fair Trading of the proposed acquisition, such notification to be in a form agreed between the parties. 28 4.2.5 The Purchaser and the Vendor shall keep each other informed at all times of any dealings with any government, governmental, supranational or trade agency or regulatory authority in relation to the proposed acquisition and shall cooperate in any such dealings and all requests and enquiries from any such body shall promptly be dealt with by the Purchaser and Vendor in consultation with each other. 4.3 NON-SATISFACTION 4.3.1 The Vendor and the Purchaser shall promptly give notice to the other of the satisfaction of the conditions set out in Clauses 4.1.1, 4.1.3 and 4.1.4 by close of business on the day of the satisfaction of such conditions. 4.3.2 If the conditions in Clause 4.1 are not satisfied on or before 31 July 1999 save as expressly provided, this Agreement shall lapse and no party shall have any claim against any other under it, save for any claim arising from breach of the undertakings contained in Clause 4.2, Clause 17, Clause 21.1 and Clause 21.2. 4.4 LOCAL CONDITIONS 4.4.1 Completion of the sale and purchase of the Shares in each of the Companies set out in column (1) of Part 2 of Schedule 5 is conditional on satisfaction of the condition(s) set out opposite each such Company in column (2) of Part 2 Schedule 5. 4.4.2 The Vendor and the Purchaser each undertakes to the other on its own behalf and on behalf of the other Relevant Sellers and Relevant Purchasers respectively that it shall use reasonable endeavours to procure that the conditions set out in Part 2 of Schedule 5 are satisfied as soon as reasonably practicable after the date hereof. 4.4.3 Save in relation to Germany, in respect of which Clause 5.9 shall apply, if any of the conditions referred to in Clause 4.4.1 are not satisfied or waived on or before 12 months from the Completion Date then the Shares to which the 29 relevant conditions relate shall not be sold hereunder and all terms of this Agreement relating to such Shares shall forthwith cease to apply and neither party shall have a claim against the other in relation to such Shares not being sold. 4.5 TERMINATION 4.5.1 If at any time before Completion a Material Adverse Effect occurs, the Purchaser shall be entitled, subject to the other provisions of this Clause 4.5, to terminate this Agreement before Completion, by notice in writing to the Vendor, without liability on its part. If the Purchaser duly exercises its right of termination hereunder it shall have no claim against the Vendor. 4.5.2 If the Purchaser wishes to terminate this Agreement in accordance with Clause 4.5.1 it shall forthwith give notice of its intention to do so to the Vendor (TERMINATION NOTICE). The Termination Notice shall be delivered by hand to the Vendor's Chief Executive and Company Secretary at (i) Devonshire House, Mayfair Place WIX 5FH and (ii) at the home addresses of those individuals notified in writing to the Purchaser on the date hereof for the purpose of this Clause together with a copy to Linklaters & Paines (for the attention of Mark Stamp) at the address specified in the Agreement. 4.5.3 If the Purchaser validly serves a Termination Notice alleging that a Material Adverse Effect falling within part (i) of the definition of "Material Adverse Effect" has occurred the Vendor may contest the validity of the Purchaser's right to terminate by giving notice in writing to the Purchaser not later than 5 pm on the day being three days after the date of the Termination Notice. This clause is without prejudice to any right that the Vendor may have to contest the validity of any Termination Notice alleging that a Material Adverse Effect falling within part (ii) of the definition of Material Adverse Effect has occurred. 4.5.4 If the Vendor gives valid notice to the Purchaser then the parties shall seek the advice of a managing director of at least 3 years standing at the London office of Goldman Sachs (the EXPERT). The Expert shall give due weight to 30 any representations put forward by either party received by him and shall as a matter of urgency (and in any event no later than 3 days after the date of appointment) advise the parties in writing if in his opinion, on the basis of the information available, a Material Adverse Effect falling within part (i) of the definition of Material Adverse Effect has occurred. If the Expert opines that such a Material Adverse Effect has occurred then this Agreement shall be deemed to have been validly terminated by the Purchaser. If the Expert opines that no such Material Adverse Effect has occurred then the parties shall complete this Agreement in accordance with its terms. 4.5.5 In giving such advice the Expert shall act as an expert and not as an arbitrator. His advice, in the absence of manifest error, shall be final and binding upon the parties and not subject to challenge in any way for the purpose of determining whether or not a Material Adverse Effect falling within part (i) of the definition of Material Adverse Effect has occurred. His fees shall be payable by the Purchaser if he does not advise that such a Material Adverse Effect occurred and by the Vendor if he does so advise. 5 ACTION PENDING COMPLETION AND SUBSEQUENT COMPLETION 5.1 VENDOR'S GENERAL OBLIGATIONS The Vendor undertakes to procure that pending Completion the Business Sellers and the Relevant Group Companies shall: 5.1.1 conduct the Operations as a going concern in the ordinary course (including the payment and discharge of all debts and liabilities of the Operations as and when they fall due in the ordinary course of business), save in so far as agreed in writing with the Purchaser; 5.1.2 allow the Purchaser and its agents, upon reasonable notice, reasonable access to the Operations provided that the obligations of the Vendor under this Clause shall be subject to any applicable data protection laws or regulations in force in any of the Jurisdictions and shall not extend to allowing 31 access to information which is reasonably regarded as confidential to the activities of Vendor's Group otherwise than in connection with the Operations; and 5.1.3 notify the Purchaser of all tenders for new contracts to the extent that such contracts, if awarded, would have a contract value in excess of(pound)15 million in respect of product manufactured wholly or mainly at the Erith site (details of which are set out in paragraph 1, Part 2 of Schedule 14) or in excess of (pound)10 million otherwise. The Vendor shall, so far as it is reasonably able to do so, notify the Purchaser hereunder a reasonable time prior to the submission of the tender and shall have regard to reasonable representations made by the Purchaser on the terms of such tender. 5.2 RESTRICTIONS ON SELLERS 5.2.1 Without prejudice to the generality of Clause 5.1, Clause 5.3 or Clause 5.4, in relation to any of the Businesses or Relevant Group Companies, the Vendor shall procure that the Relevant Sellers shall collaborate with representatives of the Purchaser (nominated in advance by the Purchaser for such purpose and agreed in writing by the Vendor) in relation to all material matters concerning the running of such Businesses or Companies between the date of this Agreement and Completion (or Subsequent Completion as the case may be) and during that period shall procure that in relation to the Operations, the Business Sellers and the Relevant Group Companies shall not, without the prior written consent of the Purchaser such consent not to be unreasonably withheld or delayed: (i) conduct such Operations in any manner except in the ordinary course and consistent with the manner carried on immediately prior to the date hereof, in particular any established procedure for the approval of contracts shall continue to be followed; or (ii) except for liabilities incurred in the ordinary course of business or budgeted capital expenditure within the approval limits of the general 32 management of such Operations, incur or agree to incur any obligation or liability relating to such Operations (absolute or contingent) that individually calls for payment by a Relevant Seller of more than(pound)100,000 in any specific case or(pound)250,000 in the aggregate; or (iii) grant any general or uniform increase in the rates of pay or benefits to employees (or a class thereof) employed in such Operations (other than those employed by BICC (Central Africa) (Private) Limited or Zimbabwe Cables (Pte) Limited) in excess of 3 1/2 per cent. per annum or, except in connection with any severance or termination that will occur prior to Completion, enter into any new severance agreement that would be required to be disclosed pursuant to the Warranties or any collective bargaining agreement with respect to such Operations; or (iv) sell, transfer, mortgage, encumber or otherwise dispose of any assets or liabilities relating to such Operations, except (a) for dispositions of property in the ordinary course not greater than (pound)250,000 in aggregate save in respect of the Business Sellers' Properties in England and Wales where (subject to Clause 5.8) there shall be no right for the Vendor or the relevant Business Seller to make any such disposition or (b) dispositions of Stock relating to such Operations in the ordinary course of business; or (v) (in the case of any Relevant Group Company) resolve to change its name or to alter its Memorandum or Articles of Association (or other constitutional documents); or (vi) other than pursuant to any contract entered into prior to the date hereof, the contents of which have been fairly disclosed to the Purchaser in the Disclosure Letter, allot or issue or agree to allot or issue any shares, quotas or any securities or grant or agree to grant 33 rights which confer on the holder any right to acquire any shares or other such interest; or (vii) other than as part of an Internal Reorganisation (in the case of a Relevant Group Company), declare, pay or make any dividend or other distribution, repay, redeem, reduce or purchase any of its share capital or registered capital, resolve to be voluntarily wound up or pass any resolution or obtain any consent from its members or any class of its members; or (viii) make any material changes in the terms or conditions of employment of, or employ, or agree to employ, any Senior Employee; or (ix) enter into any new loan facilities with banks or other financial institutions; or (x) issue any guarantee or indemnity for, or in respect of the obligations of, any member of the Vendor's Group (excluding any Group Company); or (xi) amend, vary or waive any material provisions of any shareholders' or joint venture agreement to which it may be a party in respect of any Group Company; or (xii) enter into any Material Contract save that this restriction shall not apply to: (a) the submission of any tender for new contracts nor the award of any contracts resulting therefrom; or (b) any supply or delivery of product pursuant to a "call off" in a Supply Agreement in existence at the date hereof. 5.2.2 The Vendor shall use its reasonable endeavours (subject to the fiduciary duties of the directors of any Majority Owned Group Company or Minority Group Company Group Company who have been appointed by a member of the Vendor's Group) to procure compliance with the provisions of Clause 5.2.1 34 in relation to the Operations which are not wholly owned by the Vendor's Group. 5.2.3 The Vendor shall continue to maintain (or procure the maintenance of) all the insurances currently in force in relation to the Operations and shall co-operate with the Purchaser in requesting that any insurer note (where permitted to do so) the interest of the Purchaser on the relative policies. 5.3 INTERNAL REORGANISATIONS Nothing in Clause 5.1 or Clause 5.2 shall apply to or restrict any of the Internal Reorganisations. 5.4 PURCHASER'S GENERAL OBLIGATIONS The Purchaser hereby covenants and agrees that, prior to Completion no member of the Purchasers' Group (or any employee, director, agent, representative or adviser thereof) other than those persons who have been identified in writing (the APPROVED PERSONS) to M. J. Downie, N. D. Taylor or P.J.L. Zinkin (the NOTIFIED PERSONS) shall approach or communicate with any employee, agent, representative, adviser, supplier or customer of the Vendor regarding the Operations or visit any of the Properties and no Approved Person shall take any such action if notified by the Notified Persons of their reasonable objections thereto. 5.5 ESTIMATED INDEBTEDNESS STATEMENTS The Vendor shall deliver to the Purchaser five Business Days prior to Completion the Estimated Indebtedness Statements prepared in accordance with Part 2 of Schedule 7. 5.6 VENDOR'S OBLIGATIONS PENDING SUBSEQUENT COMPLETION The Vendor undertakes, in relation to each Group Company the Shares in which are subject to Subsequent Completion: 35 5.6.1 to procure that following Completion and pending Subsequent Completion: (i) each Share Seller which is a shareholder of such Group Company, shall exercise the voting and other rights available to it to permit and facilitate the management of such Group Company and the Operations carried on by it, to be carried out in accordance with the reasonable instructions of the Purchaser (or a Relevant Purchaser), to the extent such Share Seller is able to do the same, having regard to any shareholders or other similar agreements and/or applicable laws; (ii) the Purchaser or a Relevant Purchaser shall be allowed full access to information held by any member of the Vendor's Group concerning each relevant Group Company and its affairs and business, when reasonably requested by such Purchaser, subject to any confidentiality obligations owed by any member of the Vendor's Group; and (iii) the relevant Share Sellers shall hold the Shares in such Group Companies on trust absolutely for the Purchaser and shall account to the Purchaser for any dividend payment or other distribution or economic benefit deriving from such Shares during that period; and 5.6.2 that it will, in consultation with the Purchaser, fulfil or procure fulfilment of all existing obligations of any member of the Vendor's Group to make any capital contribution (debt or equity) to, or to provide any loans, guarantees or security of any kind in respect of, such Group Company or its business, which obligations arise to be fulfilled between Completion and Subsequent Completion but so that between the date hereof and Completion, it will, not commit or agree to commit to make any further capital contributions or provide any further loans, guarantees or security. 5.7 NEW ZEALAND 5.7.1 The Purchaser may elect, ten Business Days prior to Completion, by notice in writing to the Vendor to elect to purchase BICC Holdings New Zealand 36 Limited, in substitution for BICC Cables New Zealand Limited in which case references in this Agreement to BICC Cables New Zealand Limited shall be to BICC Holdings New Zealand Limited. 5.7.2 If the Purchaser makes such an election the parties shall agree an appropriate adjustment to the amount of the Net Asset Value referred to in Clause 9.6.4 to reflect the matters set out in Clause 5.7.1. 5.8 PROPERTY AT NOTTINGHAM The Vendor shall be entitled at any time prior to Completion to sell the freehold Property at Daybrook Square, Mansfield Road, Nottingham as more fully described in paragraph 7 of Part 2 of Schedule 14 (NOTTINGHAM) to a third party. If such sale occurs then: (i) any reference to Nottingham as an asset to be sold under this Agreement shall be deemed to be deleted and the sale shall be treated as an Internal Reorganisation; (ii) the Vendor shall procure (at the Vendor's cost) that all machinery used exclusively or primarily in the Operations and located at Nottingham is transferred to the site at Leigh (as described in paragraph 5, Part 2 of Schedule 14); (iii) the proceeds of any sale shall be used by the Vendor to provide for (i) the redundancy of Employees based at Nottingham (THE NOTTINGHAM EMPLOYEES) and (ii) the transfer of machinery referred to in paragraph (ii) above; (iv) the Nottingham Employees will cease to be within the definition of European Employees or Employees; (v) the Purchaser and any Relevant Purchaser shall have no liability whatsoever in relation to any Nottingham Employees and the Vendor (on behalf of itself and the Relevant Seller) shall be responsible for and shall fully indemnify and keep indemnified the Purchaser (on 37 behalf of itself and the Relevant Purchaser) from and against all and any Losses arising from or in connection with any of the Nottingham Employees; and (vi) if the sale of Nottingham occurs pursuant to this Clause, the parties shall agree an appropriate adjustment to the amount of the Net Asset Value referred to in Clause 9.6.4 to reflect the sale and other matters contemplated hereunder. 5.9 GERMANY The following provisions shall apply in relation to the sale of the Vendor's indirect 50 per cent interest (GERMAN PARTNERSHIPS INTERESTS) in Kaiser KWO Kabel Energie GmbH & Co and Kaiser KWO Kabel Telekom GmbH & Co (GERMAN PARTNERSHIPS): 5.9.1 The Warranties shall only be given in respect of the German Partnerships Interests as at the date of the Subsequent Completion of such sale (and, for the avoidance of doubt, not at the date of this Agreement or at Completion). 5.9.2 As soon as it is reasonably able to do so having regard to the provisions of the various agreements with NKF BV, the Vendor shall prepare and deliver a copy to the Purchaser a Disclosure Letter in respect of the sale of the German Partnerships Interests (the GERMAN DISCLOSURE LETTER). 5.9.3 If the German Disclosure Letter discloses matters which demonstrate that the fair market value of the German Partnerships Interests (either alone or together) has since the date of this Agreement been reduced by an amount of (pound)1 million or more (a GERMAN MATERIAL ADVERSE EFFECT) then the Purchaser may elect by written notice to the Vendor within 30 days of the service of the German Disclosure Letter not to purchase the German Partnerships Interests. If the Purchaser so elects then the references in Part 1 of Schedule 2 to the German Partnerships Interests shall be deemed to have been deleted and the Purchase Price shall be reduced by an amount of (pound)10 million (the GERMAN 38 PURCHASE PRICE), being the amount allocated to the German Partnerships Interests pursuant to Schedule 3. 5.9.4 If (a) the German Disclosure Letter does not disclose a German Material Adverse Effect or, (b) notwithstanding that a German Material Adverse Effect has occurred the Purchaser elects to complete the sale of the German Partnerships Interests or (c) no written notice is received from the Purchaser in accordance with Clause 5.9.3 then, as soon as the conditions relating thereto specified in Part 2 of Schedule 5 shall have been satisifed the Vendor and Purchaser shall complete the sale of the German Partnerships Interests in accordance with the terms of this Agreement. 5.9.5 The Purchaser may elect by written notice to the Vendor within 30 days of the service of the German Disclosure letter to insert in Part 2 of Schedule 5 such conditions relating to the acquisition of the German Partnerhips Interests as it may reasonably require. 5.9.6 If there is a dispute between the parties as to whether a German Material Adverse Effect has occurred then the provisions of Clauses 4.5.3 to 4.5.5 shall apply, mutatis mutandis, save that (a) the references to "3 days" therein shall be to 30 days and (b) the reference to Termination Notice shall be deemed to be a reference to the notice served by the Purchaser pursuant to Clause 5.9.3 above and (c) the reference to "Material Adverse Effect" shall be to "German Material Adverse Effect". 5.9.7 Notwithstanding that the Purchaser becomes obliged to purchase the German Partnerships in accordance with Clause 5.9.4 and the relevant outstanding conditions relating thereto set out in Schedule 5 have been satisfied, the Purchaser shall not be obliged to complete the sale of the German Partnerships Interests prior to 1 January 2000. If the Purchaser elects to do so then the German Purchase Price shall be reduced by an amount equal to any pro rata forecast loss for the German Partnerships for the period between the date of Subsequent Completion and 1 January 2000 (having regard to the 39 Vendor's 50 per cent interest in the German Partnerships). For the purpose of this Clause the forecast loss shall be derived from the aggregate forecast loss set out in the latest forecast results prepared by each German Partnership. 5.9.8 If any of the conditions referred to in Clause 5.9.5 are not satisfied or waived on or before 12 months from the date of delivery of the German Disclosure Letter then the German Partnerships Interests shall not be sold hereunder and all terms of this Agreement relating to the German Partnerships Interests shall forthwith cease to apply and neither party shall have a claim against the other in relation to the German Partnerships Interests not being sold. 5.10 ITALY The Vendor and Purchaser shall use their reasonable endeavours to agree as soon as practical after the date hereof to an "Emergency remedial Plan for Year 2000 Compliance" (the PLAN) in respect of BICC Ceat Cavi Srl, such plan to include agreement as to the division of costs in connection with its implementation but, in any event, not requiring the Vendor to contribute a total of more than U.S.$600,000. Once agreed the parties shall implement the Plan in accordance with its terms. If the parties are unable to agree the terms of the Plan prior to Completion, the Vendor shall pay to the Purchaser at Completion the sum of U.S.$600,000 in full settlement of its obligation under this Clause. 5.11 LEASE AT SETTIMO, ITALY 5.11.1 The Purchaser acknowledges that the Vendor has contracted to procure the grant to a subsidiary of Corning Inc. of a lease of office space in the main administration building of the Overseas Property at Settimo, Italy listed at Part 3 of Schedule 13 for a term expiring on 31 December 1999 (the SETTIMO LEASE). 5.11.2 The parties acting reasonably having regard to the draft lease attached as Exhibit A will agree as soon as reasonably practicable after the date hereof the terms of the Settimo Lease. The Vendor shall be entitled to grant the 40 Settimo Lease, once agreed with the Purchaser, at any time prior to Completion. 5.11.3 The Purchaser agrees that if the Settimo Lease is not granted before Completion, the Purchaser shall procure that the Settimo Lease is granted on the terms agreed between the parties and a subsidiary of Corning Inc. before Completion or between the Purchaser and a subsidiary of Corning Inc. after Completion and the Purchaser shall indemnify the Vendor against all Losses arising from the failure by the Purchaser to grant the Settimo Lease. 6 COMPLETION AND SUBSEQUENT COMPLETION 6.1 DATE AND PLACE Subject as hereinafter provided: 6.1.1 Completion shall take place simultaneously at the relevant locations specified in Part A of Part 1 of Schedule 6 or at such other locations agreed to by the parties, on the last Business Day of the Vendor's accounting period (as set out in Part 3 of Schedule 6) during which the conditions set out in Clause 4.1 are satisfied or deemed to be satisfied or waived and falling not less than 30 days after the date of this Agreement or at such other place, time or date as may be agreed between the Purchaser and the Vendor provided that such later date shall be the last Business Day of an accounting period of the Vendor; 6.1.2 Subsequent Completion in respect of the Shares in any Company shall, subject to Completion taking place pursuant to Clause 6.1.1, take place at the relevant locations specified in Part B of Part 1 of Schedule 6 or at such other locations agreed to by the parties, on the last Business Day of the Vendor's accounting period (as set out in Part 3 of Schedule 6) during which the condition(s) set out in column (2) of Part 2 of Schedule 5 opposite such Company is satisfied. 41 6.2 COMPLETION EVENTS On Completion and any Subsequent Completion, the parties shall procure that the events set out in Part 2 of Schedule 6 (to the extent applicable) and the Subsidiary Agreements with respect to Completion or Subsequent Completion for which they (or a Relevant Seller or Relevant Purchaser) are respectively responsible shall take place. Either party may waive the Completion or Subsequent Completion obligations of the other party as set out in Part 2 of Schedule 6 or in the Subsidiary Agreements. 6.3 PAYMENT OF PRICE 6.3.1 Subject to Clause 6.3.2, against compliance with the foregoing provisions, on Completion the Purchaser on behalf of itself and the other Relevant Purchasers shall pay the Vendor on behalf of itself and the other Relevant Sellers, in the manner specified in Clause 3, an amount which is equal to: (i) the amount referred to in Clause 3.1.1; (ii) less the Estimated Third Party Indebtedness attributable to the Relevant Companies being sold at Completion; (iii) less the amount of Expected Intra-Group Indebtedness attributable to the Relevant Group Companies sold at Completion (where the aggregate amount owed by the Relevant Group Companies to be sold at Completion to members of the Vendor's Group exceeds the aggregate amount owed by members of the Vendor's Group to such Relevant Group Companies) or, as the case may be, plus the amount of such Expected Intra-Group Indebtedness (where the reverse is the case); (iv) plus the amount of the Estimated Cash relating to the Relevant Group Companies being sold at Completion. 6.3.2 The payment made pursuant to Clause 6.3.1 shall be reduced by the amount of consideration which has been allocated in respect of any Shares which are the subject of a Subsequent Completion (as set out in Schedule 3). 42 6.4 SUBSEQUENT COMPLETION PAYMENTS 6.4.1 Subject to Clause 6.4.2, on each Subsequent Completion, the Purchaser on behalf of itself and the other Relevant Purchasers shall pay to the Vendor on behalf of itself and the other Relevant Sellers, in the manner specified in Clause 3, an amount equal to: (i) the amount allocated to the relevant Shares set out in Schedule 3; (ii) less the Estimated Third Party Indebtedness attributable to the Relevant Group Company being sold at the Subsequent Completion; (iii) less the amount of the Expected Intra-Group Indebtedness attributable to the Relevant Group Companies sold at Subsequent Completion (where the aggregate amount owed by the Relevant Group Company sold at Subsequent Complation to members of the Vendor's Group exceeds the aggregate amount owed by members of the Vendor's Group to such Relevant Group Company) or, as the case may be, plus the amount of such Expected Intra-Group Indebtedness (where the reverse is the case); (iv) plus the amount of Estimated Cash attributable to the Relevant Company being sold at the Subsequent Completion. 6.4.2 If at the date of the relevant Subsequent Completion, the Actual Indebtedness Statement has been drawn up in accordance with Clause 9.5 then amounts in the Estimated Indebtedness Statement in respect of that Relevant Group Company being sold at that Subsequent Completion shall be treated as amounts in the Actual Indebtedness Statement unless either party disagrees. Either party may object not later than 5 Business Days prior to the purported Subsequent Completion Date by serving written notice on the other. Upon such service of the notice the parties shall procure that an Actual Indebtedness Statement is drawn up as at the Subsequent Completion Statement Date and contemporaneously with the preparation of the Deferred Net Asset Statement applying, mutatis mutandis, the provisions of Clause 9.2. 43 Adjustments to the amounts payable under Clause 6.4 shall be made applying, mutatis mutandis, the provisions of Clauses 9.6.1 and 9.6.2. 6.5 REIMBURSEMENT OF COSTS ON SUBSEQUENT COMPLETION On each Subsequent Completion, the Purchaser shall or shall procure that a Relevant Purchaser shall reimburse the Vendor for all payments made by the Vendor pursuant to Clause 5.6.2. 6.6 REPAYMENT OF LOANS IMMEDIATELY FOLLOWING COMPLETION OR SUBSEQUENT COMPLETION Immediately following Completion or Subsequent Completion, as the case may be: 6.6.1 the Purchaser shall procure that each of the Relevant Group Companies repays to the relevant member of the Vendor's Group the amount of any outstanding loans set out in the Expected Intra-Group Indebtedness Statement; and 6.6.2 the Vendor shall procure that each member of the Vendor's Group repays to the Relevant Group Companies the amount of any outstanding loans set out in the Expected Intra-Group Indebtedness Statement. 6.7 TITLE AND RISK Title to the Shares and the Business Sellers' Assets (and the risk of loss or damage thereto except as expressly provided for in this Agreement in relation to the Business Sellers' Properties) shall, subject as provided below, pass to the Relevant Purchasers on Completion provided that title to the Shares specified in Part 2 of Schedule 6 shall pass to the Relevant Purchasers on the relevant Subsequent Completion. 7 WARRANTIES 7.1 INCORPORATION OF SCHEDULE 8 7.1.1 The Vendor on behalf of itself and the other Relevant Sellers warrants to the Purchaser on behalf of itself and the other Relevant Purchasers in the terms set out in Schedule 8 and paragraph 2 of Schedule 16 subject only to: 44 (i) any matter which is fairly disclosed in or pursuant to the Disclosure Letter and any matter expressly provided for under the terms of this Agreement and so that "fairly disclosed" means disclosed in such manner and such detail as to enable a reasonable purchaser to make an informed assessment of the information disclosed; and (ii) any matter or thing hereafter done or omitted to be done pursuant to this Agreement or otherwise at the written request or with the written approval of the Purchaser. 7.1.2 The Vendor on behalf of itself and the other Relevant Sellers acknowledges that the Purchaser has entered into this Agreement on its own behalf and on behalf of the other Relevant Purchasers in reliance upon the Warranties. Save as expressly otherwise provided, the Warranties shall be separate and independent and shall not be limited by reference to any other paragraphs of Schedule 8. 7.2 WARRANTIES FROM THE PURCHASER The Purchaser on behalf of itself and the other Relevant Purchasers warrants to the Vendor on behalf of itself and the other Relevant Sellers in the terms set out in Schedule 9. 7.3 UPDATING TO COMPLETION 7.3.1 The Vendor on behalf of itself and the other Relevant Sellers further warrants to the Purchaser on behalf of itself and the other Relevant Purchasers that: (i) subject to Clause 7.1, the Warranties (other than the Warranties set out in Schedule 20) will be fulfilled down to and will be true and accurate at Completion in each case as if they had been given afresh at Completion; and (ii) if after the signing of this Agreement and before Completion, any event shall occur or matter shall arise of which the Vendor or any other Relevant Seller becomes aware and which results or may result in any 45 of the Warranties being unfulfilled, untrue, misleading or incorrect at Completion, the Vendor or other Relevant Seller shall immediately notify the Purchaser or other Relevant Purchaser in writing thereof prior to Completion. 7.4 WARRANTIES RELATING TO MINORITY COMPANIES Insofar as any of the Warranties (other than any Warranties as relate to the ability of a Relevant Seller to transfer title to Assets or Shares) are given in respect of Minority Companies or BICC Celcat, Cabos de Energie e Telecomunicaciones SA and BICC CAFCA Limited each such Warranty if not already so qualified, shall be deemed to be qualified by reference to the best of the knowledge of the Vendor (as such term is defined in Clause 1.9) . 8 LIMITATION OF LIABILITY AND CONDUCT OF CLAIMS 8.1 WARRANTY LIMITATION The Vendor's and the other Relevant Sellers' liability for breach of any of the Warranties (save as provided in Clause 8.10), shall be subject to the following limitations: 8.1.1 TIME LIMITS No liability shall arise in respect of any claim unless written notice of such claim is given by the Relevant Purchaser to the Relevant Seller setting out reasonable details of the specific matter in respect of which the claim is made including an estimate of the amount of such claim if practicable: (i) in the case of a claim arising under paragraph 4.4 of Schedule 8, within eight years following Completion; (ii) in the case of a claim under paragraph 7 of Schedule 8 or the Tax Deed of Covenant, within 60 days after the latest date on which the relevant taxation authorities can make an assessment or similar claim or demand in relation to the taxation liability in question; and 46 (iii) in the case of any other claim under this Agreement within 24 months following Completion; and any such claim shall (if it has not been previously satisfied, settled or withdrawn) be deemed to be withdrawn six months after the relevant time limit set out above unless legal proceedings in respect of it (i) have been commenced by being both issued and served and (ii) are being pursued with reasonable diligence; 8.1.2 MINIMUM CLAIMS No liability shall arise in respect of any claim arising from any single circumstance if the amount of the liability of the Relevant Seller in respect of that claim (excluding interest, costs and expenses) does not exceed (pound)15,000 (save that claims relating to a series of connected matters shall be aggregated for this purpose); 8.1.3 AGGREGATE MINIMUM CLAIMS No liability shall arise in respect of any claim unless the aggregate amount of all claims in excess of the sum specified in Clause 8.1.2 exceeds (pound)500,000 but so that if the aggregate liability in respect of all such claims exceeds that figure then all claims, including claims previously notified, shall accrue against and be recoverable from the Relevant Sellers; 8.1.4 CONTINGENT LIABILITIES No liability shall arise in respect of any liability which is contingent unless and until such contingent liability becomes an actual liability and is due and payable but this sub-clause shall not operate to avoid a claim made in respect of a contingent liability within the applicable time limits specified in Clause 8.1.1 above if the requisite details of such claim have been delivered before the expiry of the relevant period (even if such liability does not become an actual liability until after the expiry of such period); 47 8.1.5 FUTURE ACTS No liability shall arise in respect of any matter, act, omission or circumstance (or any combination thereof) (including, for the avoidance of doubt, the aggravation of a matter or circumstance) to the extent that the same would not have occurred but for: (i) ACCOUNTING AND TAXATION CHANGES any change in accounting or Taxation policy, bases or practice of a Relevant Purchaser or any of the Group Companies introduced or having effect after Completion (or Subsequent Completion, as the case may be); (ii) CHANGES IN LEGISLATION the passing of, or any change in, after the date of this Agreement, any law, rule, regulation or generally published interpretation or practice of any government, governmental department, agency or regulatory body including (without prejudice to the generality of the foregoing) any increase in the rates of Taxation or any imposition of Taxation or any withdrawal of relief from Taxation not actually (or prospectively) in effect at the date of this Agreement; or (iii) VOLUNTARY ACTS OF PURCHASER any voluntary act, omission or transaction of a Relevant Purchaser or any member of the Purchaser's Group or any of the Group Companies, or their respective directors, employees or agents or successors in title, after Completion (or Subsequent Completion, as the case may be) outside the ordinary course of business; 8.1.6 INSURANCE No liability shall arise in respect of any claim to the extent that any Losses arising from such claim are recoverable under a policy of insurance in force on the date of this Agreement. 48 8.2 MAXIMUM CLAIM No liability shall arise in respect of any claim to the extent that the aggregate amount of the liability of the Relevant Sellers for all claims (other than those pursuant to Clause 2.3.1 or 11.4 or in relation to any matter referred to in Clause 8.10) made under this Agreement, the Subsidiary Agreements, the Tax Deed of Covenant, the North American Sale and Purchase Agreement (other than those claims set out in Section 2.3.5(d) thereof) or any other agreement entered pursuant thereto or in connection therewith would exceed (pound)160,000,000 (one hundred and sixty million pounds). 8.3 MITIGATION OF LOSS The Purchaser shall procure that all reasonable steps are taken and all reasonable assistance is given to avoid or mitigate any Losses which in the absence of mitigation might give rise to a liability in respect of any claim under this Agreement or the Subsidiary Agreements. 8.4 CONDUCT OF CLAIMS 8.4.1 If any party to this Agreement or any Subsidiary Agreement (the CLAIMANT) becomes aware of any matter that may give rise to a claim against another party to this Agreement or any Subsidiary Agreement (the RECIPIENT) under this Agreement or the Subsidiary Agreements (other than in respect of a breach of the Warranty contained in paragraph 7 of Schedule 8 or under the Tax Deed of Covenant where the claim shall be dealt with in the manner set out in the Tax Deed of Covenant), notice of that fact shall be given to the Recipient as soon as practicable but any failure to give such notice shall not affect the rights of the Claimant except to the extent that the Recipient is prejudiced by such failure. 8.4.2 Without prejudice to the validity of the claim or alleged claim in question, the Claimant shall allow, and shall procure that the relevant Associated Companies of the Claimant allow, the Recipient and its accountants and 49 professional advisers fully to investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any amount is payable in respect of such claim and for such purpose the Claimant shall give, and shall procure that the relevant Associated Companies of the Claimant give, subject to the Recipient providing an indemnity in terms reasonably satisfactory to the Claimant in respect of all reasonable costs and expenses, all such information and assistance, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records, as the Recipient or its accountants or professional advisers may reasonably request. 8.4.3 If the claim in question is a result of or in connection with a claim by or liability to a third party then: (i) no admission of liability shall be made by or on behalf of the Claimant or an Associated Company of the Claimant and the claim shall not be compromised, disposed of or settled without the consent of the Recipient (such consent not to be unreasonably withheld or delayed); (ii) the Recipient shall, subject to providing an indemnity in terms reasonably satisfactory to the Claimant in respect of all costs, liabilities, claims and expenses which may be incurred by the Claimant as a result of and which would not have been incurred but for the same, be entitled at its own expense in its absolute discretion to take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest such claim or liability (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the Claimant or any Associated Company of the Claimant concerned and to have the conduct of any related proceedings, negotiations or appeals; (iii) the Claimant will give and procure that the relevant Associated Companies of the Claimant give, subject to their being paid all 50 reasonable out of pocket costs and expenses, all such information and assistance, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records, for the purpose of avoiding, disputing, denying, defending, resisting, appealing, compromising or contesting any such claim or liability as the Recipient or its professional advisers reasonably request. The Recipient agrees to keep (and to procure that any Associated Company to which such information is provided keep) all such information confidential and only to use it for such purposes. 8.4.4 To the extent any claim is covered by the provisions of Clause 12, the conduct of claims set out in that Clause shall prevail to the extent it conflicts with this Clause 8.4. 8.5 PRIOR RECEIPT If the Vendor or any other Relevant Seller pays an amount in discharge of any claim under this Agreement or the Subsidiary Agreements and a Relevant Purchaser or any Group Company subsequently recovers (whether by payment, discount, credit, relief or otherwise) from a third party a sum which is referable to the subject matter of the claim and which would not otherwise have been received by such Relevant Purchaser or Group Company, the Purchaser shall pay, or shall procure that the Relevant Purchaser or Group Company pays, to the Vendor or another Relevant Seller an amount equal to (i) the sum recovered from the third party less any reasonable costs and expenses incurred in obtaining such recovery or (ii) if less, the amount previously paid by the Relevant Seller to the Relevant Purchaser. 8.6 DOUBLE CLAIMS The Relevant Purchasers shall not be entitled to recover from the Vendor or any other Relevant Seller under this Agreement, the Subsidiary Agreements or the Tax Deed of Covenant more than once in respect of the same damage suffered, and accordingly the Vendor and the other Relevant Sellers shall not be liable in respect of any breach 51 of this Agreement or the Subsidiary Agreements if and to the extent that the Losses are or have been included in a claim under the Tax Deed of Covenant which has been satisfied, nor shall the Vendor or any other Relevant Seller be liable in respect of a claim under the Tax Deed of Covenant if and to the extent that the Losses are or have been included in a claim for breach of the Agreement which has been satisfied. 8.7 TAX In calculating the liability of the Vendor and the other Relevant Sellers for any breach of this Agreement or the Subsidiary Agreements, there shall be taken into account the amount (if any) by which any Taxation for which a Relevant Purchaser or any Group Company would otherwise have been accountable or liable to be assessed is actually reduced or extinguished as a result of the matter giving rise to such liability. 8.8 ENVIRONMENTAL CLAIMS The provisions of Schedule 16 shall apply to any claims relating to Environmental Losses or Environmental Warranties (as such terms are defined in Schedule 16). 8.9 EFFECT OF COMPLETION The Warranties and all other provisions of this Agreement and the Subsidiary Agreements in so far as the same shall not have been performed at Completion or any Subsequent Completion shall not be extinguished or affected by such completion, or by any other event or matter whatsoever (including, without limitation, any satisfaction of the conditions contained in Clause 4.1), except by a specific and duly authorised written waiver or release by the Purchaser. 8.10 TITLE WARRANTIES The Limitations on the Warranties contained in Clauses 8.1.1 to 8.1.4 shall not apply to any Warranties insofar as such relate to the ability of a Relevant Seller to transfer title to Assets or Shares to a Relevant Purchaser in accordance with Clause 2.1.1. 52 8.11 PROVISIONS IN THE ACCOUNTS No liability shall arise in respect of any claim under this Agreement or any Subsidiary Agreement if any allowance, provision or reserve is made for the matter giving rise to the claim in the Net Asset Statement. 8.12 INDEMNITIES To the extent that any Indemnity is given by the Vendor in this Agreement to the Purchaser in favour of or relating to a Majority Owned Group Company or Minority Owned Group Company, for the avoidance of doubt, the Vendor shall only be liable to contribute to the Purchaser or relevant Group Company thereunder an amount equal to the relevant Proportionate Share of the indemnified Loss. 9 NET ASSET STATEMENT, ACTUAL INDEBTEDNESS STATEMENTS AND ADJUSTMENTS TO THE PURCHASE PRICE 9.1 BASIS OF PREPARATION OF NET ASSET STATEMENT The Vendor shall procure that, as soon as practicable and in any event not later than 60 days following Completion, there shall be drawn up a statement of the aggregate of the amounts of the Assets less the aggregate of the amount of the Liabilities of the Operations as at Completion, determined in accordance with the principles set out in Part 1 of Schedule 7 (the NET ASSET STATEMENT). 9.2 PREPARATION OF NET ASSET STATEMENT 9.2.1 The draft Net Asset Statement shall be delivered to the Purchaser by the Vendor within the timescale referred to in Clause 9.1. Prior to such delivery, the Vendor shall so far as is practicable consult with the Purchaser with a view to reducing the potential areas of disagreement relating to such draft Net Asset Statement. 9.2.2 In order to enable the Vendor to prepare and the Vendor's accountants to review the draft Net Asset Statement, the Purchaser shall, and shall procure that the Relevant Purchasers shall, keep up-to-date and make available to the 53 Vendor's representatives and to the Vendor's accountants all books and records relating to the Operations during normal office hours and co-operate with them with regard to the preparation and review of the draft Net Asset Statement. The Purchaser agrees, in so far as it is reasonable to do so, to, and to procure that the Relevant Purchasers shall, make available the services of the Employees to assist the Vendor in the performance of its duties under this Agreement. 9.2.3 If the Purchaser does not within 60 days of presentation to it of the draft Net Asset Statement give notice to the Vendor that it disagrees with the draft Net Asset Statement or any item thereof such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which in the Purchaser's opinion should be made to the draft Net Asset Statement in order to comply with the requirements of this Agreement (the PURCHASER'S DISAGREEMENT NOTICE), the draft Net Asset Statement shall be final and binding on the parties for all purposes. If the Purchaser gives a valid Purchaser's Disagreement Notice within such 60 days, the parties shall attempt in good faith to reach agreement in respect thereof and, if they are unable to do so within 21 days of such notification, either party may by notice to the other require that the draft Net Asset Statement be referred to the Reporting Accountants (an APPOINTMENT NOTICE). 9.2.4 Within 21 days of the giving of an Appointment Notice, the Vendor may by notice to the Purchaser indicate that, in the light of the fact that the Purchaser has not accepted the draft Net Asset Statement in its entirety, it wishes the Reporting Accountants to consider matters relating to the Net Asset Statement in response to those specified in the Purchaser's Disagreement Notice, such notice stating in reasonable detail the reasons why and in what respects the Vendor believes that the draft Net Asset Statement should be altered (the VENDOR'S DISAGREEMENT NOTICE). 54 9.2.5 The Reporting Accountants shall be engaged jointly by the parties, as soon as practical following agreement on their terms of engagement, on the terms set out in this Clause 9.2 and otherwise on such terms as shall be agreed; provided that neither party shall unreasonably (having regard, inter alia, to the provisions of this Clause 9.2) 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 30 days of their identity having been determined (or such longer period as the parties may agree) then, unless one party 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. 9.2.6 Except to the extent that the parties agree otherwise, the Reporting Accountants shall determine their own procedure save that: (i) apart from procedural matters and as otherwise set out in this Agreement, the Reporting Accountants shall determine only: (a) whether any of the arguments for an alteration to the draft Net Asset Statement put forward in the Purchaser's Disagreement Notice or the Vendor's Disagreement Notice is correct in whole or in part; and (b) if so, what alterations should be made to the draft Net Asset Statement in order to comply with the requirements of this Agreement; (ii) the Reporting Accountants shall apply the principles set out in Part 1 of Schedule 7; (iii) the Reporting Accountants shall make their determination pursuant to paragraph (i) above as soon as is reasonably practicable but in any event, unless otherwise specified, within 40 days of the referral to them; and 55 (iv) the procedure of the Reporting Accountants shall: (a) give the parties a reasonable opportunity to make written and oral representations to them; (b) require that the parties supply each other with a copy of any written representations at the same time as they are made to the Reporting Accountants; (c) permit each party to be present while oral submissions are being made by any other party; and (d) for the avoidance of doubt, the Reporting Accountants shall not be entitled to determine the scope of their own jurisdiction. 9.2.7 The Reporting Accountants' determination pursuant to Clause 9.2.6(i) shall (i) be made in writing and made available for collection by the parties at the offices of the Reporting Accountants at such time as the Reporting Accountants shall determine and (ii) unless otherwise agreed by the parties include reasons for each relevant determination. 9.2.8 The 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 parties 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, without limitation, their determination shall be deemed to be incorporated into the draft Net Asset Statement, which shall then be final and binding on the parties save as aforesaid. 9.2.9 The expenses of the Reporting Accountants shall be borne as they shall direct at the time they make any determination under Clause 9.2.6(i) or, failing such direction, equally between the Purchaser, on the one hand, and the Vendor, on the other. 56 9.2.10 The parties 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, without limitation, the Purchaser shall, and shall procure that the Relevant Purchasers shall, keep up to date and, subject to reasonable notice, make available to the Vendor's representatives, the Vendor's accountants and the Reporting Accountants, all books and records relating to the Businesses and the Group Companies during normal office hours during the period from the appointment of the Reporting Accountants down to the making of the relevant determination. 9.2.11 Subject to Clause 9.2.12, nothing in this Clause 9.2 shall entitle a party or the Reporting Accountants to access to any information or document which is protected by legal professional privilege, or which has been prepared by the other party or its accountants and other professional advisers with a view to assessing the merits of any claim or argument. 9.2.12 A party shall not be entitled by reason of Clause 9.2.11 to refuse to supply such part or parts of documents as contain only the facts on which the relevant claim or argument is based. 9.2.13 Each party 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 Clause 9.2 confidential and shall not use the same for any purpose, except for disclosure or use in connection with the preparation of the Net Asset Statement, the proceedings of the Reporting Accountants or another matter arising out of this Agreement or in defending any claim or argument or alleged claim or argument relating to this Agreement or its subject matter. 9.3 NET ASSET STATEMENT AT COMPLETION Once the Vendor and the Purchaser reach (or pursuant to Clause 9.2.3 are deemed to reach) agreement on the draft Net Asset 57 Statement or the draft Net Asset Statement is finally determined at any stage of the procedures set out in this Clause 9: 9.3.1 the draft Net Asset Statement as so agreed or determined shall constitute the Net Asset Statement for the purposes of this Agreement and shall be final and binding on the parties; and 9.3.2 the Net Asset Value shall be derived from the Net Asset Statement. 9.4 NET ASSET STATEMENT AT SUBSEQUENT COMPLETION If the Shares of any Group Company (a DEFERRED COMPANY) are not sold to a Share Purchaser at Completion in accordance with Clause 6.1.1 then: 9.4.1 the value of the net assets attributable to the Deferred Company for inclusion in the Net Asset Statement shall be the value of such net assets set out in the Combined Accounts (the TARGET AMOUNT); 9.4.2 the Vendor and Purchaser shall procure that a statement (the DEFERRED NET ASSET STATEMENT) of the aggregate of the amounts of the assets less the Liabilities of the relevant Deferred Company shall be drawn up as at relevant Subsequent Completion, determined in accordance with the principles set out in Part 1 of Schedule 7. The Deferred Net Asset Statement shall be drawn up in accordance with Clause 9.2 save that references therein to "draft Net Asset Statement" shall be to the "draft Deferred Net Asset Statement". The net asset value attributable to the Deferred Company (the DEFERRED NET ASSET VALUE) shall be derived from the Deferred Net Asset Statement. 9.5 ACTUAL INDEBTEDNESS STATEMENTS The Vendor shall procure that, as soon as practicable following Completion, the Vendor's accountants shall draw up the Actual Indebtedness Statements to determine the amount of the Intra-Group Indebtedness, the Third Party Indebtedness and the Relevant Group Companies' Cash Balances in accordance with the provisions set out in Part 2 of Schedule 7. 58 9.6 ADJUSTMENTS TO PURCHASE PRICE 9.6.1 INTRA-GROUP INDEBTEDNESS (i) If the Expected Intra-Group Indebtedness is a negative number and the Intra-Group Indebtedness is a larger negative number or if the Expected Intra-Group Indebtedness is a positive number and the Intra-Group Indebtedness is a smaller positive number or is a negative number: (a) the Vendor (on behalf of itself and the other Relevant Sellers) shall repay to the Purchaser (on behalf of itself and the other Relevant Purchasers) an amount equal to the difference; and (b) the Purchaser shall procure that the Relevant Group Companies pay to the relevant members of the Vendor's Group and/or, as appropriate, the Vendor shall procure that the relevant members of the Vendor's Group repay to the Relevant Companies the amounts specified in the Intra-Group Indebtedness Statement such that the additional amounts being, in aggregate, received by members of the Vendor's Group (after taking account of payments made to the Relevant Group Companies hereunder) are equal to the difference between the Intra-Group Indebtedness and the Expected Intra-Group Indebtedness repaid to the Purchaser pursuant to Clause 9.6.1(i)(a) above; such payments to be made on the day falling 10 Business Days after the Intra-Group Indebtedness Determination Date; and (ii) If the Expected Intra-Group Indebtedness is a positive number and the Intra-Group Indebtedness is a larger positive number or if the Expected Intra-Group Indebtedness is a negative number and the Intra-Group Indebtedness is a smaller negative number or a positive number: 59 (a) the Purchaser (on behalf of itself and the other Relevant Purchasers) shall pay to the Vendor (on behalf of itself and the other Relevant Sellers) an amount equal to such difference; and (b) the Vendor shall procure that the relevant members of the Vendor's Group repay to the Relevant Group Companies and/or, as appropriate, the Purchaser shall procure that the Relevant Group Companies pay to the relevant members of the Vendor's Group, the amounts specified in the Intra-Group Indebtedness Statement such that the additional amounts being, in aggregate, received by the Relevant Group Companies (after taking account of payments made by the Relevant Group Companies hereunder) are equal to the difference between the Intra-Group Indebtedness and the Expected Intra-Group Indebtedness repaid to the Vendor pursuant to Clause 9.6.1 (ii)(a) above; such payments to be made on the day falling 10 Business Days after the Intra-Group Indebtedness Determination Date; 9.6.2 THIRD PARTY INDEBTEDNESS (i) If the amount of the Third Party Indebtedness exceeds the Estimated Third Party Indebtedness the Vendor (on behalf of itself and the other Relevant Sellers) shall repay to the Purchaser (on behalf of itself and the other Relevant Purchasers) an amount equal to such excess; or (ii) If the amount of the Third Party Indebtedness is less than the Estimated Third Party Indebtedness the Purchaser (on behalf of itself and the other Relevant Purchasers) shall pay to the Vendor (on behalf of itself and the other Relevant Sellers) an additional amount equal to such deficiency; such payments to be made on the day falling 10 Business Days after the Third Party Indebtedness Determination Date. 60 9.6.3 CASH (i) If the amount of the Relevant Group Companies' Cash Balances is less than the Estimated Cash the Vendor (on behalf of itself and the other Relevant Sellers) shall repay to the Purchaser (on behalf of itself and the other Relevant Purchasers) an amount equal to such deficiency; or (ii) If the amount of the Relevant Group Companies' Cash Balances exceeds the Estimated Cash the Purchaser (on behalf of itself and the other Relevant Purchasers) shall pay to the Vendor (on behalf of itself and the other Relevant Sellers) an additional amount equal to such excess; such payments to be made on the day falling 10 Business Days after the Cash Determination Date; 9.6.4 CALCULATION OF AMOUNTS IN CLAUSES 9.6.1, 9.6.2 AND 9.6.3 For the purpose of calculating the amounts in Clauses 9.6.1, 9.6.2 and 9.6.3, the Intra-Group Indebtedness, Third Party Indebtedness and Relevant Group Companies Cash Balances attributable to Relevant Group Companies which have not been sold at the time of drawing up the Actual Indebtedness Statements shall be deemed to be equal to the relevant amounts attributable to such Companies in the Estimated Indebtedness Statements. 9.6.5 NET ASSETS (i) if the Net Asset Value is less than (pound)311,000,000 (THREE HUNDRED AND ELEVEN MILLION POUNDS), then the Vendor (on behalf of itself and the other Relevant Sellers) shall pay to the Purchaser (on behalf of itself and the Relevant Purchasers) an amount equal to the difference; or (ii) if the Net Asset Value is more than (pound)311,000,000 (THREE HUNDRED AND ELEVEN MILLION POUNDS), then the Purchaser (on behalf of 61 itself and the Relevant Purchasers) shall pay to the Vendor (on behalf of itself and the other Relevant Sellers) an amount equal to the difference; such payment to be made on the day falling no later than three Business Days following agreement or determination of the Net Asset Statement in accordance with this Clause 9; 9.6.6 DEFERRED NET ASSETS (i) If the Deferred Net Asset Value is less than the Target Amount, then the Vendor (on behalf of itself and the other Relevant Sellers) shall pay to the Purchaser (on behalf of itself and the Relevant Purchasers) an amount equal to the difference; or (ii) if the Deferred Net Asset Value is more than the Target Amount, then the Purchaser (on behalf of itself and the Relevant Purchasers) shall pay to the Vendor (on behalf of itself and the other Relevant Sellers) an amount equal to the difference; such payment to be made on the day falling not later than ten Business Days following agreement or determination of the Deferred Net Asset Value in accordance with this Clause 9. 9.6.7 PAYMENT Where any payment is required to be made pursuant to this Clause 9.6: (i) interest shall accrue on the relevant amount calculated from the Completion Date or, as the case may be, Subsequent Completion in accordance with Clause 21.8; (ii) the Purchase Price shall be reduced or increased accordingly; and (iii) the allocation of the consideration in Schedule 3 shall be adjusted accordingly in such manner as the Vendor on behalf of itself and the 62 other Relevant Sellers and the Purchaser on behalf of itself and the Relevant Purchasers shall agree in accordance with Schedule 3. 10 TRANSFER TAXES AND VAT The provisions of Schedule 10 shall apply. 11 THE CONTRACTS 11.1 THE VENDOR'S OBLIGATIONS IN RESPECT OF CONTRACTS (i) The Vendor shall, subject to the indemnity given in Clause 2.3.2, procure that up to Completion the Contracts are carried out and completed and that the obligations of any of the Business Sellers under the Contracts are performed in the ordinary course (where applicable) in a proper and workmanlike manner and in accordance with their respective terms and the Vendor shall, or shall procure that another Relevant Seller shall, indemnify the Purchaser and/or each Relevant Purchaser against all Losses incurred by the Purchaser and/or each Relevant Purchaser in respect of the Contracts by reason of the non-performance or the negligent or defective performance of the Contracts by the Business Sellers prior to Completion save to the extent (i) any liability for a defective product or defective service (as such terms are defined in Clause 12.2) shall be dealt with in accordance with Clause 12 or (ii) the Losses which would otherwise be indemnified by the Vendor or a Relevant Seller pursuant to this Clause are an Assumed Liability. (ii) The Vendor shall procure that up to Completion, any contracts to which any Relevant Group Company is a party (COMPANY CONTRACTS) are carried out and completed and that the obligations of any Relevant Group Company under any Company Contract are performed in the ordinary course (where applicable) in a proper and workmanlike manner and accordance with their respective terms and the Vendor 63 shall indemnify each Relevant Group Company against all Losses incurred by such company by reason of the non-performance or the negligent or defective performance of the Company Contracts by the Relevant Group Company prior to Completion save to the extent (i) any liability for a defective product or defective service (as such terms are defined in Clause 12.2) shall be dealt with in accordance with Clause 12 or (ii) the Losses which would otherwise be indemnified by the Vendor or a Relevant Seller pursuant to this Clause are an Assumed Liability. 11.2 THE PURCHASER TO COMPLETE CONTRACTS The Purchaser shall, without prejudice to the indemnity given in Clause 2.3.1, procure that with effect from Completion each of the Contracts is carried out and completed by a Relevant Purchaser and that the relevant Business Sellers' obligations under the Contracts are performed (to the extent that the same have not been previously carried out or completed) in the ordinary course (where applicable) in a proper and workmanlike manner and in accordance with their respective terms and the Purchaser shall, or shall procure that the Relevant Purchasers shall, indemnify the relevant Business Sellers against all Losses incurred by the Business Sellers in respect of the Contracts by reason of or in connection with the non-performance or the negligent or defective performance of the Contracts after Completion by any Relevant Purchaser Provided that the Purchaser (or Relevant Purchaser as the case may be) shall not be so obliged and this indemnity shall not apply to the extent that the Purchaser (or Relevant Purchaser as the case may be) has or would have (in either case disregarding Clause 8.1) a valid right of action under this Agreement or any Subsidiary Agreement against the Business Sellers in respect of the Contract(s) in question. 11.3 PAYMENTS RECEIVED BY BUSINESS SELLERS To the extent that any payment is made to any Business Seller in respect of any Contract after the Completion Date, the Vendor shall procure that such Business 64 Seller shall receive the same as trustees and pay the same to the Purchaser (or Relevant Purchaser, as the case may be) (net of any tax payable by such Business Seller thereon) as soon as reasonably practicable following receipt. 11.4 SUBSTANTIAL CONTRACTS The Relevant Sellers and Relevant Purchasers agree to co-operate and to use all reasonable endeavours prior to and after Completion to ensure that the Substantial Contracts are lawfully novated or assigned to the Relevant Purchasers with effect from Completion or as soon as reasonably practicable thereafter. Any costs associated with assigning or novating or otherwise transferring the benefit of any Substantial Contracts (including any payments made to any party as a condition to giving their consent) and shall be for the account of the Relevant Seller. To the extent that any Relevant Seller is unable to transfer the economic benefit of any Substantial Contract the Vendor shall indemnify the Relevant Purchaser against all Losses directly arising therefrom up to an amount which, when aggregated with amounts payable under Section 2.3.2(e) of the North American Agreement, does not exceed (pound)10 million. The Purchaser shall procure that each Relevant Purchaser shall take all reasonable steps to eliminate or reduce any costs which may be payable by a Relevant Seller or the Vendor hereunder. 11.5 BICC CAVI SUD S.P.A The Vendor shall indemnify BICC Ceat Cavi Srl (CEAT CAVI) against any and all Losses arising out of or in connection with the contract entered into between Ceat Cavi, the Vendor and Thomas Bolton Group Limited dated 30 December 1998, relating to purchase of the shares of BICC Cavi Sud S.p.A. 11.6 EMPLOYEES AT SETTIMO SITE IN ITALY The Vendor shall indemnify the Purchaser from and against all Losses arising from the termination after Completion (or with the Purchaser's consent prior to Completion) of the employment of 21 Employees located at the Settimo, Italy site, details of which are set out in Schedule 13, up to a maximum amount of (pound)750,000. 65 12 DEFECTIVE PRODUCT OR SERVICE 12.1 LIABILITY FOR DEFECTIVE PRODUCT OR SERVICE The Vendor and Purchaser agree that any liability for defective product (as defined in Clause 12.2 below) manufactured or defective service (as defined in Clause 12.2 below) supplied by (i) any of the Business Sellers in connection with the Operations or (ii) any of the Relevant Group Companies, in either case prior to Completion (or Subsequent Completion as the case may be), shall remain the responsibility of such Relevant Seller or in the case of a Relevant Group Company the Vendor; and that any defective product manufactured or defective service supplied after Completion (or Subsequent Completion as the case may be) by any of the Businesses or the Group Companies shall be the responsibility of the Relevant Purchaser or Group Company, failing which the Purchaser. 12.2 MEANING OF DEFECTIVE PRODUCT AND DEFECTIVE SERVICE A DEFECTIVE PRODUCT and a DEFECTIVE SERVICE means a product or service supplied by any of the Businesses or the Relevant Group Companies that does not conform to its express or implied contractual requirements, whether in terms of performance, quality, time of delivery or in any other respect. A product shall be considered as manufactured when it has passed through final testing at the factory of the Operations and any reference to manufacturing or manufacture in this Clause 12 shall have such a meaning. 12.3 VENDOR RECEIVES CLAIM 12.3.1 If, following Completion (or Subsequent Completion as the case may be), a Relevant Seller or Relevant Group Company receives a claim from any person in respect of a defective product manufactured and/or sold or defective service supplied before Completion (or Subsequent Completion as the case may be), it shall inform the Purchaser immediately and take steps to investigate, report on, and take (in its view) appropriate and prompt remedial action in respect of such defective product or defective service. 66 12.3.2 If the claim can be settled by a payment alone, the Vendor shall be responsible, or shall procure that such Relevant Seller is responsible, for meeting the contractual obligations of the supplier/provider of the defective product or defective service in that respect. 12.3.3 If the claim involves the supply of a replacement and/or the removal, repair and reinstallation of the defective product or the re-engineering or re-doing of work pursuant to a service supplied, the Purchaser shall, or shall procure that the Relevant Purchaser or the Relevant Group Company shall, carry out the necessary work for such Relevant Seller, at the fully absorbed manufacturing cost plus 5 per cent (together with any value added or similar tax applicable thereon and any other taxes) and duties payable thereon such costs to be paid by the Vendor or any Relevant Seller within 30 days following delivery of an invoice therefor. 12.3.4 If the claim involves both a payment and the repair or replacement of a product or part of a product or the re-engineering or other re-doing of work in respect of a service, the payment shall remain the responsibility of such Relevant Seller, but the provisions of Clause 12.3.3 shall apply to the repair, replacement or re-engineering. 12.4 PURCHASER RECEIVES CLAIM If a claim in respect of a defective product manufactured and/or sold or defective service supplied before Completion (or Subsequent Completion as the case may be) is made against a Relevant Purchaser or any Relevant Group Company, it shall inform the Vendor forthwith and: 12.4.1 if, in the joint opinion of Vendor and Purchaser, the claim is partly or wholly justified on contractual grounds, the Purchaser shall, or shall procure that the Relevant Purchaser or Relevant Group Company shall, take all reasonable steps as instructed by the Vendor or another Relevant Seller, without prejudicing the legitimate interests of such Relevant Seller, to repair, replace and make good the defective product or defective service and/or compensate 67 the claimant to the extent appropriate in accordance with the terms of the relevant applicable contract. The Vendor shall procure that such Relevant Seller shall, failing which the Vendor shall, indemnify and keep the Relevant Purchaser or Relevant Group Company indemnified accordingly, provided that in respect of a defective product or service, the indemnity shall cover only sums equivalent to those specified in Clause 12.3.3 incurred by the Relevant Purchaser or Relevant Group Company; and 12.4.2 where the Vendor and the Purchaser are unable to reach agreement on the extent to which the claim is justified and how it is to be dealt with within 21 days of either party receiving notice of the claim (both parties acting reasonably and negotiating in good faith), the Relevant Purchaser or Relevant Group Company shall be entitled to take such action as it thinks reasonably appropriate having regard to the provisions of the relevant contract relating thereto, but with an overriding responsibility to minimise the costs thereof, whereupon the indemnity set out in Clause 12.4.1 shall apply to such claim. 12.5 VENDOR RECEIVES CLAIM FOR POST COMPLETION PRODUCT OR SERVICE If a claim in respect of a defective product manufactured or defective service supplied after Completion (or Subsequent Completion as the case may be) is made against a Relevant Seller, it shall inform the Purchaser forthwith and the Relevant Purchaser or Relevant Group Company shall take over and deal with the claim, and the Purchaser shall procure that the Relevant Purchaser or Relevant Group Company, failing which the Purchaser, shall indemnify such Relevant Seller accordingly. 12.6 CLAIM MADE FOR PRODUCT OR SERVICE SPANNING COMPLETION If a claim is made against a Relevant Seller or Relevant Purchaser or Relevant Group Company after Completion (or Subsequent Completion as the case may be) in respect of a defective product partly manufactured or defective service partly supplied in the period both before and after Completion (or Subsequent Completion as the case may be), then unless the defect can be clearly established as being wholly 68 attributable to acts or omissions either before or after Completion (or Subsequent Completion as the case may be) (in which case Clause 12.3 or Clause 12.4 or Clause 12.5 (as the case may be) above shall apply), the parties shall in good faith negotiate and use their reasonable endeavours to agree a fair and equitable apportionment of the claim. 12.7 INDEMNITIES REDUCED BY RECOVERY FROM THIRD PARTIES Indemnities applicable under this Clause 12 shall be reduced to the extent that (i) any provision for the relevant matter has been made in the Net Asset Statement or (ii) a Relevant Seller or a Relevant Purchaser or Relevant Group Company is able to recover any costs incurred either from insurance or from a third party, and each of the Vendor and the Purchaser undertakes to use its best endeavours to review the possibility of all such recoveries and act accordingly, keeping the other fully informed of its actions, and (in the case of legal proceedings) consulting with the other at each stage of the proceedings. 13 THIRD PARTY CONSENTS 13.1 FAILURE TO NOVATE OR ASSIGN If in respect of a Business any of the Contracts cannot be vested in a Relevant Purchaser except by way of novation or assignment, in each case requiring relevant third party agreement (which term shall for the purposes of this Clause include any waiver or other document required) or consents, then the relevant Contracts shall not, so as to cause a breach thereof or event of default (or the like) thereunder, be assigned by this Agreement but: 13.1.1 shall be held in trust for the Relevant Purchaser absolutely from Completion until such agreement or consent is obtained and the relevant Contract is so novated or assigned, until which time the Purchaser shall perform, or procure that a Relevant Purchaser performs (as agent or sub-contractor), all the obligations of the relevant Business Seller thereunder and the Vendor shall otherwise cooperate in any reasonable arrangements proposed by the 69 Purchaser designed to procure for the Purchaser or a Relevant Purchaser the benefits of the relevant Contract. If the relevant Contract prohibits a Relevant Purchaser from so acting as agent or sub-contractor, the Vendor shall or shall procure that another Relevant Seller shall, subject to being indemnified for any losses (including Taxation) it may incur in connection therewith, do (or procure to be done) all such acts required for the performance of the relevant Contract so as to provide the Relevant Purchaser with the benefits, subject to the burdens on the basis provided in this Agreement, of the relevant Contract; 13.1.2 the Vendor shall, or shall procure that another Relevant Seller shall, at the Relevant Purchaser's request either make or assist the Relevant Purchaser in making application for any such agreement or consent and together with the Relevant Purchaser endeavour to obtain such novation or assignment as aforesaid, such that the relevant novation or assignment is effective from Completion. The costs of making such applications and of procuring such for assignments or novations shall be for the account of the Relevant Sellers which shall include the payment of reasonable fees and expenses necessary to obtain such consent or assignment PROVIDED THAT the Relevant Seller need only exercise its reasonable endeavours in obtaining the relevant consents or assignments. The Purchaser shall supply or shall procure that the Relevant Purchaser supplies, to the Relevant Seller such information and references regarding the financial position of the Relevant Purchaser as may reasonably be requested by the Relevant Seller and shall enter into, or procure that the Relevant Purchaser enters into, such direct covenants in favour of any relevant third party as may reasonably be requested in respect of any rents, royalties, fees or other outgoings or liabilities for which the Relevant Purchaser will from Completion become liable. If required by any third party, the Purchaser shall give, or procure that the Relevant Purchaser gives, such reasonable additional covenants requested by any third party as a condition of giving their consent and shall generally use, and shall procure that 70 the Relevant Purchaser uses, all reasonable endeavours to secure such consent; and 13.1.3 unless and until any relevant Contracts are novated or assigned, the Vendor will, and shall procure that the other Relevant Sellers will (so far as it lawfully may) give all reasonable assistance to the Relevant Purchaser to enable the Relevant Purchaser to enforce its rights under such Contract. 14 EMPLOYEES The provisions of Schedule 11 shall apply. 15 EMPLOYEE BENEFIT ARRANGEMENTS The provisions of Schedule 12 shall apply. 16 THE BUSINESS SELLERS' PROPERTIES IN ENGLAND AND WALES The provisions of Schedule 14 shall apply. 17 REIMBURSEMENT OF EXPENSES If the condition set out in Clause 4.1.1 is not satisfied then the Vendor will reimburse the Purchaser for all of its professional and other fees, costs and expenses incurred in the conduct of its due diligence investigations into the Global Operations and in negotiating this Agreement, the North American Sale and Purchase Agreement and all other agreements referred to therein up to a maximum of US $5,000,000. The Purchaser will accompany any claim under this Clause with copies of relevant invoices and the Vendor will reimburse such fees, costs and expenses within 7 days of presentation of appropriate invoices. 71 18 POST-COMPLETION OBLIGATIONS 18.1 THE ASSUMED LIABILITIES 18.1.1 The Vendor shall procure that if any Relevant Seller becomes aware after Completion of any claim which constitutes or may constitute an Assumed Liability, the Relevant Seller shall as soon as reasonably practicable give written notice thereof to the Relevant Purchaser and shall not admit, compromise, settle, discharge or otherwise deal with such claim without prior consultation with and the prior agreement of the Relevant Purchaser. 18.1.2 The Vendor shall procure that the Relevant Seller shall at the Relevant Purchaser's expense take such action as the Relevant Purchaser may reasonably request to avoid, dispute, resist, appeal, compromise, defend or mitigate any claim which constitutes an Assumed Liability but subject to the Relevant Seller being indemnified and secured to its reasonable satisfaction by the Purchaser against all Losses which may thereby be incurred. In connection therewith the Vendor shall, or shall procure that the Relevant Seller shall, make or procure to be made available to the Relevant Purchaser or its duly authorised agents, at the Relevant Purchaser's cost, on reasonable notice during normal business hours all relevant books of account, records and correspondence relating to the Operations which have been retained by the Relevant Seller (and shall permit the Relevant Purchaser to take copies thereof) for the purposes of enabling the Relevant Purchaser to ascertain or extract any information relevant to the claim. 18.2 BONDS AND GUARANTEES 18.2.1 The Purchaser on behalf of itself and the Relevant Purchasers agrees to use its best efforts with the Relevant Sellers' assistance to procure, effective from the Completion Date, the release of the Relevant Seller or any member of the Vendor's Group from such of the bonds or guarantees issued by banks on behalf of any of them in respect of the Operations as shown in Schedule 18 72 (for the period up to and including 31 December 1998) as relate to any of the Contracts, and after 31 December 1998 to Completion for such bonds or guarantees entered into in the ordinary course of the Operations or in any event as soon as practicable after Completion. 18.2.2 After Completion but prior to such release the Purchaser on behalf of itself and the Relevant Purchasers undertakes to the Vendor (for itself and as trustee for the Relevant Sellers and each member of the Vendor's Group) to keep each member of the Vendor's Group fully, indemnified against any Liabilities arising after Completion, but only to the extent of any Relevant Purchaser's or Group Companies' actions relating to any such bonds or guarantees referred to in Clause 18.2.1 or their respective underlying contracts or tenders. 18.2.3 After Completion if any of the bonds referred to in Clause 18.2.1 are called then the Relevant Seller, failing which the Vendor, will indemnify the Relevant Purchaser for any loss related thereto which is attributable to the actions of any Relevant Seller or Group Company (as the case may be) before Completion as agreed to by the Vendor and Purchaser. 18.3 VENDOR'S GENERAL OBLIGATIONS If at any time after Completion, any Business Seller or any member of the Vendor's Group receives any monies (other than insurance proceeds) in respect of any Claim or in respect of any Receivable, then the Vendor shall procure that the relevant Business Seller or member of the Vendor's Group shall pay to the Purchaser as soon as reasonably practicable the amount recovered less any Taxation which would not have arisen but for the receipt of such monies. 18.4 VENDOR'S CONTINUING OBLIGATION Notwithstanding Completion, the Vendor shall, and shall procure that each of the Relevant Sellers shall, execute such documents and do such acts and things as the 73 Purchaser may reasonably require for the purpose of giving to the Relevant Purchasers the full benefit of all the provisions of this Agreement. 18.5 NAME 18.5.1 The Purchaser shall, subject to Clause 18.5, have the right to continue to use and the right to sublicence any of the Relevant Group Companies to use (but only for so long as such remain subsidiaries of the Purchaser) any trade marks and trade names used by the Vendor in relation to the Operations and which are not comprised in the Assets sold hereunder on a royalty free, non-exclusive basis for a period of 12 months from the Completion Date but solely on the products on and in the manner in which they were being used immediately before Completion; provided that after 30 days from Completion (or Subsequent Completion as the case may be) the Purchaser shall, or shall procure that the Relevant Purchaser shall, use reasonable endeavours to make clear on all publicity material (excluding factory signs), cheques letterheads and invoices that the relevant Businesses and Group Companies are part of the Purchaser's Group. 18.5.2 The Purchaser shall be entitled to use and have the right to sublicence to any member of the Purchaser's Group (but only for so long as such remain subsidiaries of the Purchaser) the name "BICC" in conjunction only with the name "General Cable" as the name of any corporate entity, partnership, or other vehicle which, in all cases, is primarily involved in the manufacture, sale or distribution of cables. 18.5.3 The Purchaser shall be entitled to use and have the right to sublicence to any member of the Purchaser's Group (but only for so long as such remain subsidiaries of the Purchaser) the name "Brand Rex" only preceded by the name "General Cable" as the name of any corporate entity, partnership or other vehicle which, in all cases, is solely involved in the manufacture, sale or distribution of Specialty Cables in the United States of America, Canada or Mexico. 74 18.5.4 The Purchaser shall not be entitled to register or use in any manner whatsoever the trade mark "Brand Rex" or any confusingly similar trade mark on any Data Cable product wherever manufactured or sold. The Purchaser acknowledges that the Vendor shall be entitled to use "Brand Rex" name on any Data Cable product world-wide and on any Specialty Cables (other than sales to customers located in the United States, Canada or Mexico). 18.5.5 The Vendor shall not be entitled to apply for a trade mark registration, register or use in any manner whatsoever employ the trade mark "Brand Rex" on any Specialty Cable sold to manufacturers located in the United States, Canada or Mexico. 18.5.6 The Purchaser shall procure that within three months of Completion (or such later date as the Vendor may agree) it will remove "BICC" from the name of each Group Company which uses such name as part of its corporate name, save to the extent otherwise permitted by clause 18.5.2. 18.5.7 The Vendor shall procure that within three months of Completion (or such later date as the Purchaser may agree), it shall change the name of any company within the Vendor's Group to exclude the word "Pyrotenax" or any combination of words "Rod and Wire" and "Thermoheat and Wire". 18.5.8 For the purpose of this Clause 18.5: (i) Specialty Cables are cables sold for use in Airplanes, Ships, Locomotives, Trucks, or other forms of vehicular transport (or otherwise currently manufactured in the United States by the Brand Rex division of BICC Cables Corporation other than Data Cables; and (ii) Data Cables are cables primarily intended for the transmission of data in local or wide area networks, examples being category 5, 6, and 7 data cables. 75 18.6 LEGAL ASSIGNMENTS OF RECEIVABLES If it becomes necessary for the Business Purchaser of the Business in the United Kingdom to enforce any Receivable relating to the Business in the United Kingdom against the relevant debtor, then if so requested by the Purchaser, the Vendor and the Purchaser agree to procure that the Relevant Seller and the Relevant Purchaser enter into a legal assignment of the relevant Receivable. 18.7 WASTE REGULATIONS The Purchaser shall, and shall procure that each of the Relevant Purchasers shall, use its reasonable endeavours to supply any relevant records, correspondence and information necessary for the Vendor and/or any other Relevant Seller to meet its residual obligations relating to the Operations in respect of the period up to Completion under the relevant national requirements relating to the EC Producer Responsibility Packaging Waste Regulations. 18.8 RETAINED INTELLECTUAL PROPERTY AND RETAINED KNOW HOW 18.8.1 The Vendor hereby grants and shall procure that each member of the Vendor's Group shall grant to each of the Relevant Purchasers with effect from Completion a royalty-free, irrevocable, perpetual licence to use the Retained Intellectual Property and Retained Know-How required for the Operations (as carried on at Completion) to be used for the purposes of the Operations, as each of the Operations develop from time to time, with a right to sub-licence to other members of the Purchaser's Group (so long as such remain Subsidiaries of the Purchaser's Group). 18.9 DOMAIN NAMES The Vendor shall cancel or procure the cancellation of the domain name registration "biccceat.com" and shall take all reasonable steps to procure the transfer, to the Purchaser of the domain names "supertension.com" and "cryobicc.com" and to the extent that the Vendor is unable to procure such transfer it shall procure that the relevant domain name registrations are cancelled. 76 18.10 REDUNDANCY REIMBURSEMENT 18.10.1 The Vendor shall reimburse the Purchaser for 50 per cent of all actual cash expenditure incurred by the Vendor up until the Completion Date or the Purchaser or, as the case may be, any Relevant Purchaser thereafter until 31 December 1999 up to a maximum of(pound)6,000,000 (six million pounds) in respect of redundancy and reorganisation costs which would be properly chargeable against the reorganisation provision of(pound)10 million identified in note 7 to the accounts relating to the Global Operations in the agreed terms and other redundancy provisions of(pound)2,000,000 (two million pounds) in such Accounts. 18.10.2 The Vendor shall make payment required to be made under Clause 18.10.1: (i) in respect of cash expenditure made prior to the Completion Date at Completion; and (ii) in respect of cash expenditure made by the Purchaser or Relevant Purchaser within ten Business Days of receipt of appropriate evidence demonstrating that the appropriate expenditure has been made. 18.11 EUROPEAN EMPLOYEE INDEMNITY The Vendor (on behalf of itself and the Relevant Seller) shall fully indemnify and keep indemnified the Purchaser (on behalf of itself and the Relevant Purchaser) from and against all and any Losses which the Relevant Purchaser may incur in relation to any European Employee who, at the date of this Agreement, earns a basic salary which exceeds (pound)200,000 per annum, where such Losses arise solely as a result of or in connection with the change of his employer (provided such change is significant and to his detriment) occurring by virtue of the Transfer Provisions under the relevant European Country and/or the entering into and or completion of this Agreement. 77 19 RESTRICTIVE COVENANTS 19.1 SCOPE OF RESTRICTIVE COVENANT In order to protect the goodwill of the Operations and the Confidential Information (as defined in Clause 21.2.5 for the purposes of Clause 21.2.1) the Vendor agrees with the Purchaser that without the prior consent in writing of the Purchaser it will not and it will procure that to the extent that it is able to do so that no member of the Vendor's Group will directly or indirectly, whether by itself, its employees or agents and whether on its own account or on behalf of or in conjunction with or through the medium of any other person, firm or company or otherwise howsoever, for a period beginning on Completion and ending three years after the date of this Agreement: 19.1.1 carry on or be otherwise engaged or interested in any capacity (whether for reward or otherwise) in, any business which competes with any of the Businesses anywhere in the world where the Operations are currently carried on; 19.1.2 in relation to the Businesses, solicit or canvass, seek to procure or accept orders from or otherwise do business with or procure directly or indirectly any other person to procure orders from or do business with any person, firm, company or other organisation who or which: (i) was a customer, supplier or agent of the Vendor or any Group Company in relation to any of the Businesses at any time during the two years prior to Completion; or (ii) at the date of Completion was in the process of negotiating to do business with the Vendor or any Group Company in relation to any of the Businesses; or otherwise interfere or seek to interfere with, or with the continuance of, the supply of goods or services to or by the Businesses (or any of them) PROVIDED THAT this paragraph shall not preclude any member of the Vendor's Group from doing business with any person who is or was a 78 customer, supplier or agent of the Vendor's Group prior to Completion in relation to any business of the Vendor's Group which is not being transferred under this Agreement; 19.1.3 (with a view to employment) solicit or entice away, or endeavour to solicit or entice away, from the Purchaser or any Group Company, any Senior Employee who at Completion was employed or otherwise engaged by the Vendor (or any Relevant Seller) in relation to any of the Businesses and whose employment was transferred to the Purchaser on Completion (PROHIBITED EMPLOYEES) (provided that nothing in this paragraph shall prevent any member of the Vendor's Group from making generalised employment searches, by advertisement or by engaging firms to conduct searches which are not focussed on Prohibited Employees). 19.2 EXCLUSIONS FROM RESTRICTIVE COVENANT The restriction in Clause 19.1 shall not operate to prohibit: 19.2.1 the Vendor from holding in aggregate up to 10 per cent of the shares of any company which carries on or is about to carry on any such business as is mentioned in this clause and the shares of which are listed or dealt on a recognised stock exchange; 19.2.2 the Vendor from fulfilling any obligation of the Vendor pursuant to this Agreement or the Asset and Share Purchase Agreement dated 26 February 1999 between the Vendor, Corning International Corporation and Corning Incorporated or any General Services and Supply Agreements; 19.2.3 the Vendor from carrying on any business not sold to the Purchaser pursuant to the terms of this Agreement in particular the business presently carried on under the name "BICC Brand Rex" with manufacturing facilities outside the United States, Canada and Mexico to be renamed "Brand Rex"; or 19.2.4 the Companies specified in Part 2 of Schedule 5 from carrying on their business up to the date of Subsequent Completion (or if Subsequent 79 Completion does not so occur, indefinitely) where the sale and purchase of those Companies are not completed on or with effect from the Completion Date. 19.3 SEPARATE AND INDEPENDENT RESTRICTION Each of the restrictions in Clause 19.1.1, 19.1.2, 19.1.3 and 19.1.4 shall constitute an entirely separate and independent restriction on the Vendor. 20 GUARANTEES 20.1 VENDOR'S GUARANTEED OBLIGATIONS In consideration of the Purchaser's Guarantor entering into the guarantee in Clause 20.3, the Vendor hereby unconditionally and irrevocably guarantees to the Purchaser and/or the Relevant Purchaser (as the case may be) the due and punctual performance and observance by the Relevant Sellers of all their obligations, commitments, undertakings, warranties and indemnities under or pursuant to this Agreement or any Subsidiary Agreement or the Tax Deed of Covenant (the VENDOR'S GUARANTEED OBLIGATIONS). 20.2 RELEVANT SELLERS DEFAULT If and whenever any of the Relevant Sellers defaults for any reason whatsoever in the performance of any of the Vendor's Guaranteed Obligations the Vendor shall forthwith upon written demand served in accordance with this Agreement unconditionally perform (or procure performance of) and satisfy (or procure the satisfaction of) the Vendor's Guaranteed Obligations in regard to which such default has been made in the manner prescribed by this Agreement and so that the same benefits shall be conferred on the Purchaser or the Relevant Purchaser (as the case may be) as it would have received if the Vendor's Guaranteed Obligations had been duly performed and satisfied by the Relevant Seller. 80 20.3 PURCHASER'S GUARANTEED OBLIGATIONS In consideration of the Vendor entering into this Agreement, the Purchaser's Guarantor hereby unconditionally and irrevocably guarantees to the Vendor and/or the Relevant Seller (as the case may be) the due and punctual performance and observance by the Purchaser and the other Relevant Purchasers of all their obligations, commitments, undertakings, warranties and indemnities under or pursuant to this Agreement or any Subsidiary Agreement (the PURCHASER'S GUARANTEED OBLIGATIONS). 20.4 PURCHASER'S DEFAULT If and whenever any of the Relevant Purchasers defaults for any reason whatsoever in the performance of any of the Purchaser's Guaranteed Obligations, the Purchaser's Guarantor shall forthwith upon written demand served in accordance with this Agreement unconditionally perform (or procure performance of) and satisfy (or procure the satisfaction of) the Purchaser's Guaranteed Obligations in regard to which such default has been made in the manner prescribed by this Agreement and so that the same benefits shall be conferred on the Vendor or the Relevant Seller (as the case may be) as it would have received if the Purchaser's Guaranteed Obligations had been duly performed and satisfied by the Relevant Purchaser. 21 OTHER PROVISIONS 21.1 ANNOUNCEMENTS 21.1.1 Pending Completion or, in relation to the relevant part of the Operations, any Subsequent Completion, the Vendor and the Purchaser shall, subject to the requirements of law or any regulatory body or the rules and regulations of any recognised stock exchange, consult together as to the terms of, the timetable for and manner of publication of, any formal announcement or circular to shareholders, employees, customers, suppliers, distributors and sub-contractors and to any recognised stock exchange or other authorities or to the media or otherwise which either party may desire or be obliged to make 81 regarding this Agreement or any Subsidiary Agreement. Any other communication which the Purchaser or the Vendor may make concerning the foregoing matters shall, subject to the requirements of law or any regulatory body or the rules and regulations of any recognised stock exchange, be consistent with any such formal announcement or circular as aforesaid. 21.1.2 Subject to Clause 21.1.1, neither party shall pending Completion or, in relation to the relevant part of the Operations, any Subsequent Completion, make or authorise or issue any formal announcement, circular or other communication concerning the subject matter of this Agreement or any Subsidiary Agreement. 21.1.3 If Completion does not take place, the Purchaser shall forthwith hand over or procure the handing over of all accounts, records, documents and papers of or relating to the Relevant Sellers which shall have been made available to it and all copies or other records derived from such materials and expunge any information derived from such materials or otherwise concerning the subject matter of this Agreement or any Subsidiary Agreement from any computer, wordprocessor or other device containing information Provided that this shall not apply to information available from public records or information acquired by a Relevant Purchaser otherwise than from the Relevant Sellers or their agents. 21.2 CONFIDENTIAL INFORMATION 21.2.1 The Vendor: (i) shall not and shall procure that no other member of the Vendor's Group or any director, officer or employee or adviser or agent of the Vendor's Group shall disclose to any person Confidential Information; and (ii) shall use all reasonable endeavours to prevent the disclosure of Confidential Information by any person other than by members of the Purchaser's Group. 82 21.2.2 The Purchaser: (i) shall not and shall procure that no other member of the Purchaser's Group or any director, officer or employee or adviser or agent of the Purchaser's Group shall disclose to any person Confidential Information; and (ii) shall use all reasonable endeavours to prevent the disclosure of Confidential Information by any person other than by members of the Vendor's Group. 21.2.3 Clause 21.2.1 does not apply to: (i) disclosure of Confidential Information to or at the written request of a Relevant Purchaser; (ii) disclosure of Confidential Information required to be disclosed by law, regulation, any revenue authority or any Stock Exchange; (iii) disclosure of Confidential Information to professional advisers for the purpose of advising a Relevant Seller provided that such advisers shall be made aware of the confidential nature of such information; (iv) disclosure of Confidential Information for the purposes of defending any claim under the Warranties or otherwise under this Agreement (including making any claims or counterclaims against third parties pursuant to Clause 8.4); or (v) Confidential Information which is in the public domain other than by the Vendor's breach of Clause 21.2.1. 21.2.4 Clause 21.2.2 does not apply to: (i) disclosure of Confidential Information to or at the written request of a Relevant Seller; (ii) disclosure of Confidential Information required to be disclosed by law, regulation, any revenue authority or any Stock Exchange; 83 (iii) disclosure of Confidential Information to professional advisers for the purpose of advising a Relevant Purchaser provided that such advisers shall be made aware of the confidential nature of such information; or (iv) Confidential Information which is in the public domain other than by the Purchaser's breach of Clause 21.2.2. 21.2.5 CONFIDENTIAL INFORMATION means, for the purposes of Clause 21.2.1 all information relating to any Group Company's or Business Seller's business, or financial or other affairs (including future plans and targets) of any Group Company or Business Seller and which is not in the public domain and means, for the purposes of Clause 21.2.2, all information relating to the business, financial or other affairs (including future plans and targets) of any company in the Vendor's Group and which is not in the public domain. 21.3 REMEDIES 21.3.1 This Agreement, the Subsidiary Agreements and the Tax Deed Covenant contain the whole agreement between the parties relating to the subject matter of this Agreement at the date hereof to the exclusion of any terms implied by law which may be excluded by contract. The Purchaser on behalf of itself and the other Relevant Purchasers acknowledges that it has not been induced to enter this Agreement by, and so far as is permitted by law and except in the case of fraud, hereby waives any remedy in respect of any warranties, representations and undertakings not incorporated into this Agreement. 21.3.2 So far as is permitted by law and except in the case of fraud, the parties agree and acknowledge that the only right and remedy which shall be available to a Relevant Purchaser in connection with or arising out of or related to any of the statements contained in the Warranties shall be damages in contract for breach of this Agreement and not rescission of this Agreement, nor damages in tort or under statute (whether under the Misrepresentation Act 1967 or otherwise), nor any other remedy. 84 21.3.3 Each party to this Agreement confirms it has received independent legal advice relating to all the matters provided for in this Agreement, including the provisions of this Clause, and agrees, having considered the terms of this Clause and the Agreement as a whole, that the provisions of this Clause are fair and reasonable. 21.3.4 In Clause 21.3.1 to 21.3.3, this Agreement includes the Disclosure Letter and all documents entered into pursuant to this Agreement. 21.4 SUCCESSORS AND ASSIGNS 21.4.1 Either the Vendor or the Purchaser may, except as otherwise expressly provided in this Agreement and without the consent of the other, assign to an Associated Company the benefit of all or any of the other party's obligations under this Agreement provided however that such assignment shall not be absolute but shall be expressed to have effect only for so long as the assignee remains an Associated Company. 21.4.2 This Agreement is, subject to Clause 21.4.1, personal to the parties to it. Accordingly, neither the Purchaser nor the Vendor may, without the prior written consent of the other, assign the benefit of all or any of the other's obligations under this Agreement, nor any benefit arising under or out of this Agreement nor shall the Purchaser be entitled to make any claim against the Vendor in respect of any loss which it does not suffer in its own capacity as beneficial owner of the Shares and/or Businesses. 21.5 VARIATION ETC. No variation of this Agreement shall be effective unless in writing and signed by or on behalf of each of the parties to this Agreement. 21.6 TIME OF THE ESSENCE Any time, date or period referred to in any provision of this Agreement may be extended by mutual agreement between the parties but as regards any time, date or 85 period originally fixed or any time, date or period so extended time shall be of the essence. 21.7 THIRD PARTY COSTS The Vendor shall bear all legal, accountancy and other third party costs and expenses incurred by it in connection with this Agreement, the Subsidiary Agreements and the Tax Deed of Covenant and the sale of the Operations. The Purchaser shall bear all such costs and expenses incurred by it and any other Relevant Purchaser. 21.8 INTEREST If any Relevant Seller or any Relevant Purchaser defaults in the payment when due of any sum payable under this Agreement, the Subsidiary Agreements or the Tax Deed of Covenant (whether determined by agreement or pursuant to an order of a court or otherwise) their liability 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 2 per cent above the base rate from time to time of The Hong Kong and Shanghai Banking Corporation Limited. Such interest shall accrue from day to day. 21.9 SET-OFF Under no circumstances shall any amounts (if any) payable by any Relevant Purchaser to any Relevant Seller or by any Relevant Seller to any Relevant Purchaser pursuant to this Agreement be set off against each other. 21.10 LONG STOP LIMITATION OF LIABILITY Notwithstanding any other provision in this Agreement or any provision in any Subsidiary Agreement or the Tax Deed of Covenant, under no circumstances shall any Relevant Seller have any liability whatsoever pursuant to this Agreement, any Subsidiary Agreement or the Tax Deed of Covenant following the twentieth anniversary of the date of this Agreement. 86 21.11 NOTICES 21.11.1 Any notice or other communication requiring to be given or served under or in connection with this Agreement shall be in writing and, other than in relation to Clause 4.5, shall be sufficiently given or served if delivered or sent: (i) in the case of any of the Vendor or Relevant Sellers to such party care of: BICC plc Devonshire House Mayfair Place London W1X 5FH Fax: 0171 409 0070 Attention: The Company Secretary of BICC plc (ii) in the case of any of the Relevant Purchasers or the Purchaser's Guarantor to such party care of: General Cable Corporation 4 Tesseneer Drive Highland Heights Kentucky 41076 Fax: (00 1) 606 572 8444 Attention: General Counsel 21.11.2 Any such notice or other communication shall be delivered by hand or sent by courier, fax or prepaid first class post. If sent by courier or fax such notice or communication shall conclusively be deemed to have been given or served at the time of despatch, in case of service in the United Kingdom, or on the following Business Day in the case of international service. If sent by post such notice or communication shall conclusively be deemed to have been received two Business Days from the time of posting, in the case of inland mail in the United Kingdom, or three Business Days from the time of posting in the case of international mail. 87 21.12 SEVERANCE If any term or provision of this Agreement is held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form part of this Agreement but the enforceability of the remainder of this Agreement shall not be affected. 21.13 REFERENCES TO THE REPORTING ACCOUNTANTS Whenever any matter is referred under this Agreement (other than Clause 9) to the Reporting Accountants for determination, the provisions of Clause 9 which apply to the Reporting Accountants' determination of the Net Asset Statement shall apply to their determination of any such matter. 21.14 GENERAL SERVICES AND SUPPLY AGREEMENTS The Vendor and Purchaser hereby agree that they will need to settle by Completion or as soon as practicable thereafter the General Services and Supply Agreements. 21.15 TRANSITIONAL SERVICES The Vendor agrees to use reasonable endeavours to provide to the Operations such transitional services, such as central payroll and other functions, at cost, as are reasonably requested by the Purchaser and which are required for the Operations for a period of up to 12 months from Completion and the Purchaser shall give at least three months' written notice prior to any termination of the provision of transitional services by the Vendor. 21.16 COUNTERPARTS This Agreement may be executed in any number of counterparts each of which shall be deemed an original, but all the counterparts shall together constitute one and the same instrument. 88 21.17 GOVERNING LAW AND SUBMISSION TO JURISDICTION This Agreement and the Subsidiary Agreements and the documents to be entered into pursuant to them, save as expressly referred to therein, shall be governed by and construed in accordance with English law and the parties irrevocably agree that the courts of England are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement, the Subsidiary Agreements and such documents. 21.18 APPOINTMENT OF PROCESS AGENTS 21.18.1 The Purchaser irrevocably appoints Norose Notices Limited at Kempson House, Camomile Street, London EC3A 7AN as its agent for the service of process in England in relation to any matter arising out of this Agreement, service upon whom shall be deemed completed whether or not forwarded to or received by the Purchaser. 21.18.2 The Purchaser shall inform the Vendor, in writing, of any change in the address of its process agent within 28 days of such change. 21.18.3 If such process agents cease to have an address in England, the Purchaser irrevocably agrees to appoint new process agents acceptable to the Vendor and to deliver to the Vendor within 14 days a copy of a written acceptance of appointment by its new process agents. 21.18.4 Nothing contained in this Agreement shall affect the right to serve process in any other manner permitted by law or the right to bring proceedings in any other jurisdiction for the purposes of the enforcement or execution of any judgment or other settlement in any other courts. 89 IN WITNESS whereof this Agreement has been duly executed on the date first set out above SIGNED by Peter Zinkin on | behalf of BICC plc in the | presence of - Peter Zinkin Mark Stamp | Linklaters | One Silk Street London EC2Y 8HQ SIGNED by Robert J. Siverd | on behalf of GK Technologies, | Incorporated in the presence - Robert J. Siverd of | Mauro Mattiuzzo | Kempson House Camomile Street London EC3A 7AN SIGNED by Robert J. Siverd | on behalf General Cable | Corporation in the presence of - Robert J. Siverd Mauro Mattiuzzo | Kempson House | Camomile Street London EC3A 7AN 90 SCHEDULE 1 OPERATIONS 1 England and Wales (all as defined in Part 2 of Schedule 14) 1.1 Erith (i) Design, manufacture, marketing and installation of High Voltage and Extra High Voltage land and subsea cable systems (ii) Technology research and development (iii) Jointing and installation training school 1.2 Prescot (i) Design, manufacture and distribution of components for energy cable networks (ii) Management services for BICC Energy Cables in UK, Europe, Africa and the Middle East (iii) Manufacture of mineral-insulated cable and accessories (iv) Manufacture of copper rod and wire 1.3 Wrexham (excluding Wrexham II) (i) Design, manufacture and marketing of low and medium voltage power cable systems (mainly for power distribution networks) (ii) Technology research and development 1.4 Nottingham (i) Manufacture of wire braid 1.5 Hebburn (i) Manufacture of mineral-insulated thermocouple and heating cable and accessories (ii) Manufacture of monitoring cables for aircraft applications 91 1.6 Leigh (excluding the Brand Rex Premises) (i) Design, manufacture and marketing of industrial and specialist cables (including compounding) 1.7 Swansea (i) Sales office 2 ITALY: 2.1 Settimo Site (i) Design manufacture and marketing of low and medium voltage power cable systems (mainly for power distribution networks) (ii) Compound unit (elastomeric) 2.2 Ascoli Site (i) Design and manufacture of general industrial and metallic telecommunications cables. 3 SPAIN: Manlleu Site - | Design, manufacture and marketing of both | transmission and distribution land power Montcada Site | cable systems and construction power and | wiring cable systems and general industrial | cables Abrera Site - Barcelona Site (i) Management services for energy cables 92 3.5 Teulada Site - | | 3.6 Pamplona Site | Sales Services | | 3.7 Seville Site | | | 3.8 Bilbao Site | | | 3.9 Valencia Site - 4 NORWAY: (i) Distribution services 5 BRAZIL: (i) Import and sales services for energy cables 6 PORTUGAL: 6.1 Morelena Site (i) Design, manufacture and marketing of distribution power cable systems, construction power and wiring cable systems and metallic telecom cables, optical cables and general industrial cables (ii) Management services 6.2 Oporto Site (i) Sales services for energy and metallic telecom cables 7 MOZAMBIQUE: (i) Manufacture and sale of energy cables 8 ANGOLA: (i) Sale of energy cables 93 9 DUBAI: (i) Design, manufacture and marketing of distribution and construction power and wiring cable systems 10 EGYPT: 10.1 Site at Giza, Cairo (i) Design, manufacture and marketing of construction wiring cables systems 10.2 Zamalek Site (i) Sales/management services 11 JERSEY: (i) Holding company services for Egyptian companies 12 ZIMBABWE: Harare Site (i) Design, manufacture and marketing of energy distribution and construction power and wiring cable systems and metallic telecom cables (ii) Management services 13 CHINA: 13.1 Shanghai Site (i) Sales services 13.2 Beijing Site (i) Representative office 14 NEW ZEALAND: 14.1 Christchurch Site (i) Design, manufacture and sale of energy and metallic telecommunication cables systems 94 (ii) Sale only of optical cables 14.2 Wellington Sites - Distribution of energy and telecom cables; | 14.3 Auckland Site - administration and sales 15 FIJI: (i) Design, manufacture and sale of energy cables 16 SINGAPORE: 16.1 Office at 435 Orchard Road (17th Floor) (i) Sales services 16.2 Office at 435 Orchard Road (21st Floor) (i) Management services 16.3 Pasir Panjang Sites (i) Management/sales services 17 MALAYSIA: Kuala Lumpur Sites (Shah Alam and Bukit Raja) (i) Design, manufacture and sale of energy cables and aluminium rod 18 INDONESIA: Jakarta Site (i) Design, manufacture and sale of energy and optical telecom cables (non-operational) 19 HONG KONG: Wanchai and Chai Wan Sites (i) Sales services for energy cables 20 SAUDI ARABIA: (i) Sales Services 95 21 ABU DHABI: (i) Sales Services 22 QATAR: (i) Sales Services 23 BAHRAIN: (i) Sales Services 24 ARGENTINA: (i) Distribution Services 25 THAILAND: Bangkok Site (i) Sales Services 26 TAIWAN: (i) Representative Office 27 GERMANY: Britz and Kopernick Sites (ii) Design, manufacture and marketing of medium-voltage and other energy cables and metallic telecom cables (iii) Design, manufacture and marketing of optical power ground wire 96 SCHEDULE 2 PART 1 DETAILS OF THE SHARES AND THE BUSINESSES 1 Particulars of Share Sellers and Shares to be Sold
(1) (2) NAME OF SHARE SELLER COMPANIES AND SHARES SOLD (*100% OF THE ISSUED SHARE CAPITAL) 1.1 BICC Cables Energia y (i) BICC General Cable SA* Comunicaciones SA 510,000 nominative shares of 5,000 pesetas each 1.2 BICC Overseas Investments (i) BICC Ceat Cavi Srl* Limited nominal quota of 80,000,000,000 lire (ii) BICC Portugal SGPS SA* 600,000 non-redeemable shares of Esc 1,000 each and 875,000 redeemable shares of Esc 1,000 each (iii) BICC CAFCA Limited 2,046,630 ordinary shares of Z$0.50 each in the name of BICC Overseas Investments Limited and 21,029,544 ordinary shares of Z$0.50 each in the name of Midland Bank Nominees (74% of the issued share capital) (iv) Dubai Cable Co. Limited 11,955 shares of Dhs 1,000 each (30% of the issued share capital) (v) BICC Cables Asia-Pacific Pte Ltd 95,779,000 "A" shares of S$1 each (50% of the issued share capital) 1.3 BICC plc (i) BICC - Ducab Investments Limited 2,285,002 ordinary shares of(pound)0.01 each (50% of the issued share capital) (ii) RPG-BICC Power Cables Pvt Ltd 260,013 shares of 10 Rp each (26% of the issued share capital)
97
(1) (2) NAME OF SHARE SELLER COMPANIES AND SHARES SOLD (*100% OF THE ISSUED SHARE CAPITAL) 1.4 BICC International Holdings (i) BICC Cables Asia Pacific Pte Ltd Pty Limited 95,779,000 "B" shares of S$1 each (50% of the issued share capital) 1.5 BICC Holdings New Zealand BICC Cables New Zealand Limited* Limited 48,200 ordinary shares of NZ$1 each 1.6 BICC Cables Pty Ltd (i) Dominion Wire & Cables Limited 153,000 ordinary shares of F$1 each (51% of the issued share capital) 1.7 Electric Transmission Limited (i) Trans-Power Cables Pte Ltd* 1,500,000 ordinary shares of S$1 each 1.8 Mayfair Place Investments (i) BICC Supertension Cables (1980) Limited* Limited 98 ordinary shares of (pound)1 each and 4,999,900 redeemable ordinary shares of (pound)1 each held in the name of Mayfair Place Investments and 2 ordinary shares of (pound)1 each held by Bical Nominees Limited 1.9 BICC Cables Projects (i) 50% interest in Kaiser KWO Kabel Engergie Gmbh & Co Limited (ii) 50% interest in Kaiser KWO Kabel Telekom Gmbh & Co
98 2 PARTICULARS OF THE SUBSIDIARIES
JURISDICTION COMPANY BICC SHAREHOLDER 2.1 Portugal BICC Celcat, Cabos de Energia de BICC Portugal SGPS SA (50.7%) Telecomunicacoes SA 2.2 Mozambique Cel Moque-Fabrica Nacional de BICC Celcat, Cabos de Energia e Contudores Electricos SARL Telecomunicacoes SA (29%) BICC CAFCA Limited (18%) 2.3 Angola Condel-Fabrica de Contudores BICC Celcat, Cabos de Energia e Electricos de Angola SARL Telecomunicacoes SA 2.4 Egypt BICC Egypt SAE BICC - Ducab Investments Ltd 2.5 Egypt BICC Egypt Trading Ltd BICC Egypt SAE 2.6 Zimbabwe BICC (Central Africa) (Private) BICC CAFCA Limited Limited 2.7 Zimbabwe Zimbabwe Cables (Pte) Limited BICC CAFCA Limited 2.8 Norway BICC NORSPA A/S BICC General Cable SA (51%) 2.9 Brazil BICC Novacoes Ltda BICC General Cable SA (80%) 2.10 Argentina BICC Cables Argentina SA BICC General Cable SA (1 share is owned by BICC Cables Energia y Comunicaciones, SA) 2.11 Brunei BICC Cables (Brunei) BICC Energy Cables Pte Ltd Sdn Bhd 2.12 Singapore BICC Energy Cables Pte Ltd BICC Cables Asia - Pacific Pte Ltd 2.13 China BICC Cables China Ltd BICC Cables Asia - Pacific Pte Ltd 2.14 Malaysia Power Cables Malaysia BICC Cables Asia - Pacific Pte Ltd Sdn Bhd (40%) 2.15 Malaysia BICC (Malaysia) Sdn Bhd BICC Cables Asia - Pacific Pte Ltd (30%) 2.16 Malaysia BICC Cables Malaysia Pte Ltd BICC Cables Asia - Pacific Pte Ltd 2.17 Singapore Reliance Cables Pte Ltd BICC Cables Asia - Pacific Pte Ltd 2.18 Indonesia PT BICC Berca Cables BICC Cables Asia - Pacific Pte Ltd (50%) 2.19 Bahrain BICC Middle East Traders Dubai Cable Co Ltd (45%) 2.20 Qatar JBK BICC Dubai Cable Co Ltd (49%) 2.21 Abu Dhabi BICC Al Jallaf Dubai Cable Co Ltd (49%)
99 SCHEDULE 2 PART 2 PARTICULARS OF THE BUSINESS SELLERS AND THE BUSINESSES TO BE SOLD (1) (2) NAME OF BUSINESS SELLER BRIEF DESCRIPTION OF BUSINESS/ASSET TO BE SOLD 1 BICC plc See paragraph 1 of Schedule 1 2 BICC Cables Limited The benefit of the Contracts entered into by it as undisclosed agent for any Vendor Group Company in relation to the Businesses 3 BICC Components Limited The benefit of the Contracts entered into by it as undisclosed agent for any Vendor Group Company in relation to the Businesses. 100 SCHEDULE 3 ALLOCATION OF CONSIDERATION The Purchase Price shall be allocated between the Shares and the Businesses as follows:
(1) (2) (3) (4) NAME OF SELLER JURISDICTION PARTICULARS OF ALLOCATION COMPANY/BUSINESSES (POUND) 3.1 BICC plc UK Sale of assets- see 96,000,000 paragraph 1 of Schedule 1 3.2 BICC plc Jersey BICC - Ducab Investments nominal Limited 3.3 BICC plc India RPG - BICC Power Cables nominal Pvt Ltd. 3.4 BICC Cables Energia Spain BICC General Cable SA 19,000,000 y Comunicaciones SA 3.5 BICC Cables Projects Germany Kaiser KWO Kabel 10,000,000 Limited Energie GmbH & Co and Kaiser KWO Kabel Telekom GmbH & Co 3.6 BICC Overseas Dubai Dubai Cable Co. Limited 23,000,000 Investment Limited 3.7 BICC Overseas Italy BICC Ceat Cavi Srl 1,000,000 Investments Limited 3.8 BICC Overseas Portugal BICC Portugal SGPS SA 3,400,000 Investments Limited 3.9 BICC Overseas Zimbabwe BICC CAFCA Limited 1,000,000 Investments Limited 3.10 BICC Overseas Malaysia, BICC Cables Asia-Pacific Pte 1,500,000 Investments Limited Singapore, Limited Indonesia and China 3.11 BICC International Malaysia, BICC Cables Asia-Pacific Pte 1,500,000 Holdings Pty Limited Singapore, Limited Indonesia and China
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3.12 BICC Holdings New New Zealand BICC Cables New Zealand 11,000,000 Zealand Limited Limited 3.13 Electric Transmission Singapore Trans-Power Cables Pte Ltd 1,000,000 Limited 3.14 Mayfair Place UK BICC Supertension Cables 200,000 Investments Limited (1980) Limited 3.15 BICC Cables Pty Ltd Fiji Dominion Wire & Cables 2,000,000 Limited
The allocation of the Purchase Price between each of the Business Sellers' Assets included in a sale of a Business shall, subject to Clause 9.6.6 (iii) of the Agreement, be agreed between the Vendor and the Purchaser within seven Business Days prior to Completion or, failing agreement within this period, shall be referred to the Reporting Accountants for determination, such determination to be made by Completion. Adjustments to the Purchase Price (pursuant to Clause 9 or otherwise) shall be allocated as agreed between the Vendor on behalf of itself and the other Relevant Sellers and the Purchaser on behalf of itself and the other Relevant Purchasers, or failing agreement, as determined by the Reporting Accountants on the application of either party. 102 SCHEDULE 4 INTERNAL REORGANISATIONS 1 BICC Brand Rex Inc and BICC Brand Rex Pte Ltd will be sold by BICC Cables Asia - Pacific Pte Ltd to BICC Overseas Investments Ltd. 2 BICC General Cable SA will distribute surplus cash by way of dividend to BICC Cables Energia y Communicaciones SA; and/or BICC Cables Energia y Communicaciones SA will subscribe further equity in BICC General Cable SA to the extent necessary to enable BICC General Cable SA to repay all indebtedness. 3 BICC Holdings New Zealand Limited will subscribe for further equity in BICC Cables New Zealand Limitd to discharge a net intra-group liability of NZ$ 115 million. 4 BICC Overseas Investments Ltd will subscribe for equity in BICC Ceat Cavi Srl to the extent necessary for BICC Ceat Cavi Srl to repay substantially all indebtedness and to eliminate any deficiency of net assets. 5 The shares which BICC Ceat Cavi Srl owns in BICC Cables Energia y Communicaciones SA will be disposed of by BICC Ceat Cavi Srl either by sale to BICC Overseas Investments Ltd or by BICC Cables Energia y Communicaciones SA redeeming the said shares. 6 BICC plc will subscribe for further shares in BICC Ducab Investments Ltd to enable BICC Ducab Investments Ltd to subscribe for further shares in BICC Egypt SA. 7 100% of the shares in General Cable Sistemas SA are expected to be transferred to BICC General Cable S.A. by 17 April 1999. 8 BICC plc may subscribe further equity in BICC Cables Asia - Pacific Pte Ltd to enable it or its 100% subsidiaries to discharge all indebtedness. 103 9 BICC will continue to negotiate with Hong Kong and Shanghai Banking Corporation Limited (Indonesia branch) to finalise the documentation relating to the loan arrangements with PT BICC Berca Cables. 10 Recapitalisation of BICC Cables Asia-Pacific Pte and possible disposals and/or liquidations by BICC Cables Asia-Pacific Pte of dormant companies. 11 BICC General Cable SA will sell the property kown as c/Cresques 18-40, Buen Pastor, Barcelona, Spain to BICC Cables Energia y Comunicaciones S.A. or to another entity nominated by BICC Plc. 104 SCHEDULE 5 CONDITIONS APPLICABLE TO THE PURCHASE OF CERTAIN SHARES/BUSINESSES
(1) (2) COMPANY/BUSINESS CONDITION PART 1 (I) BICC Ceat Cavi Srl The Italian Antitrust Authority having received due notification of the proposed acquisition of the Business by the Purchaser or by the Relevant Purchaser pursuant to Act 287/1990 and (i) having issued within the subsequent 30 (thirty) days its decision not to start an investigation into such proposed acquisition in accordance with section 16.4 of Act 287/1990 or (ii) having issued within such time period no decision and no request to be supplied with further information and/or documents in addition to the information and/or documents supplied by the Purchaser or the Relevant Purchaser as part of the above notification. (II) the Business in the United Kingdom The receipt by one or both of the parties of a statement in writing by the Minister for Enterprise, Trade and Employment of Ireland, indicating that she has decided not to make an order under section 9 of the Mergers, Takeovers and Monopolies (Control) Act, 1978 (as amended) in relation to the sale contemplated by the Agreement or, in the event of a conditional order under that Act having been made by the Minister, the parties, acting reasonably, being satisfied with and accepting the conditions of that order.
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(1) (2) COMPANY/BUSINESS CONDITION (iii) BICC Cables New Zealand Limited 1. Receipt by the Purchaser, in writing on terms acceptable to the Purchaser, of any clearances or authorisations as may be considered reasonably necessary by the Purchaser under Part III of the Commerce Act 1986 for the implementation of this Agreement. 2. Receipt by the Purchaser, in writing on terms reasonably acceptable to the Purchaser, of any consents required under the Overseas Investment Regulations 1995 for the implementation of this Agreement. PART 2 (i) Dubai Cable Co Limited and 1. Receipt of the consent of Dubai Cable Company BICC-Ducab Investments Limited Limited (DUCAB) in a form reasonably satisfactory to the Purchaser to the transfer of the shares in BICC-Ducab Investments Limited and a waiver of Ducab's pre-emption rights in respect thereof. 2. Receipt of a "no objection" letter in a form reasonably satisfactory to the Purchaser from the legal adviser to the Ruler to the transfer of the shares in Ducab. 3. Receipt in a form reasonably satisfactory to the Purchaser of the consent of each of the Government of Dubai and the General Industrial Corporation of Abu Dhabi to the transfer of the shares in Ducab and the waiver of their pre-emption rights in respect
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(1) (2) COMPANY/BUSINESS CONDITION thereof. 4. Receipt by the Purchaser of a waiver, in a form reasonably satisfactory to the Purchaser, from each of the Nationale Society General Bank SA and International Company for Electrical and Electronics Industries SAE of their right of termination for change of control pursuant to the joint venture agreement in respect of BICC Egypt SAE. 5. Receipt by the Purchaser of any consent, in a form reasonably satisfactory to the Purchaser, of the Egyptian General Authority for Investment required in respect of the change of control of BICC Egypt SAE. (ii) BICC CAFCA Limited 1. Receipt of a waiver or appropriate release, in a form reasonably satisfactory to the Purchaser, from any obligations under the rules of the Zimbabwe Stock Exchange to make a bid for all the shares in BICC CAFCA Limited. 2. Receipt by the Purchaser, in a form reasonably satisfactory to the Purchaser, of any permission required from the Reserve Bank of Zimbabwe pursuant to the Exchange Control (General) Order, 1996.
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(1) (2) COMPANY/BUSINESS CONDITION (iii) BICC Cables Asia-Pacific Pte Ltd and 1. Receipt by the Purchaser of a waiver, in a form Trans-Power Cables Pte Ltd reasonably satisfactory to the Purchaser, from PT Berca Indonesia in respect of its right of termination for change of control pursuant to the joint venture agreement in respect of PT BICC Berca Cables Limited. (iv) Dominion Wire & Cables Limited 1. Receipt by the Purchaser of the consent, in a form reasonably satisfactory to the Purchaser, of the Reserve Bank of Fiji to the transfer of shares in Dominion Wire and Cable Limited. 2. Receipt by the Purchaser of the consent, in a form reasonably satisfactory to the Purchaser, of the other shareholder in Dominion Wire and Cable Limited to the transfer of the shares therein, and the waiver of its pre-emption rights in respect of such shares. (v) RPG-BICC Power Cables Pvt Ltd 1. Receipt by the Purchaser of the consent, in a form reasonably satisfactory to the Purchaser, of RPG Industries Limited to the transfer of the shares in RPG-Orion Power Cables Limited and the waiver of its pre-emption rights in respect thereof. 2. Receipt by the Purchaser of the consent, in a form reasonably satisfactory to the Purchaser, of the Reserve Bank of India to the transfer of the shares in RPG-Orion Power Cables Limited. (vi) BICC Portugal SGPS SA 1. Receipt by the Purchaser of a waiver, in a form
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(1) (2) COMPANY/BUSINESS CONDITION reasoanbly satisfactory to the Purchaser, from the Portugese Stock Exchange of the obligation to make an offer for 100% of the shares in BICC Celcat, Cabos de Energia de Telecommunicaciones SA
109 SCHEDULE 6 PART 1 COMPLETION PART A: COMPLETION
(1) (2) RELEVANT JURISDICTION RELEVANT COMPLETION LOCATION 1 United Kingdom Linklaters & Paines 1345 Avenue of the Americas 19th Floor, New York, NY 10105 2 Spain Uria & Menendez, Jorge Juan 6, 28001 Madrid 3 Italy Marena, Aghina, Bonvicini e Ludergnani, Via degli Omenoni, 2, 20121 Milano 4 New Zealand Simpson Grierson, Simpson Grierson Building, 92-96 Albert Street, Wellesley Street Auckland
PART B: SUBSEQUENT COMPLETION (1) (2) RELEVANT JURISDICTION RELEVANT COMPLETION LOCATION 1 Dubai Denton Hall, 501-502 City Tower 1 Sheikh Zayed Road, P.O. Box 1756 Dubai 2 Jersey To Be Determined 3 Zimbabwe Scanlen & Holderness CABS Centre 74 Jason Moyo Avenue 4 Germany Oppenhoff & Radler, Hohenstaufenring 62, D-50674, Koln 5 Portugal Goncalves Pereira, Castelo Branco & Asociados,
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Praca Marques de Pombal, 1-8(0), 1250-160 Lisbon 6. Singapore Lee & Lee Level 19, UIC Building, No. 5 Slenton Way, Singapore 068808 7 Fiji Simpson Grierson, Simpson Grierson Building, 92-96 Albert Street, Wellesley Street Auckland 8 India To Be Determined
111 SCHEDULE 6 PART 2 1 On the Completion Date the Vendor shall, or shall procure that the Relevant Seller shall, deliver or make available to the Purchaser (or the Relevant Purchaser): 1.1 evidence of the due fulfilment of the conditions set out in Clause 4 and Schedule 5 for which the Relevant Seller is responsible; 1.2 duly executed transfers or assignments of the Business Sellers' Properties in England and Wales together with the relevant documents of title (duly scheduled) save for the Leased Properties insofar as consents to assign are required but have not been obtained by the Completion Date in which case the relevant provisions of Schedule 14 shall apply; 1.3 such conveyances, transfers, assignments and novations (duly signed or sealed as a deed by the Relevant Seller and, if so reasonably required by the Vendor, the Relevant Purchaser) in relation to the Contracts together with the relative documents of title and such requisite Third Party Consents as the Relevant Seller may have obtained provided that the Vendor shall not be obliged to convey, assign, transfer or novate, or procure the conveyance, assignment, transfer or novation of, any Business Sellers' Assets otherwise than to or in favour of the Purchaser where any relative Third Party Consent is required and has been obtained in favour of the Purchaser only; 1.4 statutory Declarations in agreed terms relating to the matters referred to in the Special Conditions of Sale; 1.5 an undertaking to use reasonable endeavours to assist the Purchaser to answer any requisitions which may be raised by HM Land Registry in connection with any of the Purchaser's applications to register the relevant transfers to the Purchaser of each of the Business Sellers' Properties which are registrable; 112 1.6 those Business Sellers' Assets comprised in the Operations which are capable of transfer by delivery; 1.7 in each case where the said information is not at the Properties all books, records and other information relating to the Operations or Relevant Employees of the Operations and all information relating to customers, suppliers, agents and distributors and other information relating exclusively or primarily to the Operations or the relevant Employees of the Operations as the Purchaser may reasonably require and copies or, at the Vendor's option, originals of any such books, records, documents or other information in the possession or control of a Relevant Seller which relate only in part to the Operations and which the Purchaser may reasonably require; 1.8 resolutions of the, Board of Directors of each of the Relevant Sellers for acknowledgement or approval of the transfer or assumption of the Businesses or Assumed Liabilities whenever any such acknowledgement or approval is required by law or under the constitutional documents of the Relevant Seller; 1.9 Deeds of Assignment or Novation in the agreed terms for the transfer or novation of all the Contracts in the Operations and with effect from the Completion Date, duly signed by or for the relevant Business Seller and (where necessary) the Purchaser or the Relevant Purchaser; 1.10 subject to the matters specified in paragraph 3.6 of Part 1 of Schedule 14 vacant possession of the Business Sellers' Properties in England and Wales; 1.11 releases in respect of any Encumbrances affecting any of the Business Sellers' Assets or the Businesses; 1.12 the Tax Deed of Covenant duly executed by the Covenantor named in it; 2 OTHER ISSUES 2.1 The Vendor and the Purchaser shall respectively procure that each Relevant Seller and each Relevant Purchaser uses all reasonable endeavours together to procure such transfers of Environment Permits and written notification to any Environment 113 Authorities as are required by Environmental Laws or pursuant to any Environmental Permit. 2.2 The Vendor and the Purchaser shall respectively procure that each Relevant Seller and each Relevant Purchaser complies in all respects with its obligations under the relevant Subsidiary Agreement on Completion (or Subsequent Completion, as the case may be). 3 BOARD RESOLUTIONS On Completion the Vendor shall procure the passing of board resolutions (to the extent necessary) (if requested by the Purchaser) revoking all existing authorities given to banks (in respect of the operation of its bank accounts) and giving authority in favour of such persons as the Relevant Purchaser may nominate to operate such accounts. 4 STAMP DUTY The Vendor and the Purchaser agree to cooperate in mitigating liability to stamp duty (and to procure cooperation by any Relevant Seller and Relevant Purchaser to mitigate such liability) in respect of this Agreement and any document contemplated by this Agreement and in particular to execute any documents in suitable jurisdictions which do not require the payment of stamp duty or any other transaction tax merely because a document is executed there and only to bring such documents into the United Kingdom after informing the other party at least 21 days in advance. 114 SCHEDULE 6 PART 3 VENDOR'S ACCOUNTING PERIODS Set out below are the dates of the last Business Day of the Vendor's relevant accounting periods for the first four periods following the signing of this Agreement: 30/04/1999 28/05/1999 02/07/1999 30/07/1999 The last Business Day of such other of the Vendor's accounting periods as may be required for the purposes of this Agreement shall be notified by the Vendor to the Purchaser within 10 Business Days of the date of this Agreement. 115 SCHEDULE 7 PART 1 - NET ASSET STATEMENT 1 The Net Asset Statement shall be prepared in accordance with UK GAAP prevalent as at 31 December 1998, excluding the impact of FRS 11 and on a basis consistent with the Combined Accounts and shall be drawn up in accordance with the provisions of paragraphs 2-6 below, and following to the extent not inconsistent therewith: 1.1 the accounting policies for the relevant parts of the Operations attached as Exhibit B, and to the extent not inconsistent therewith; 1.2 the accounting policies and principles applied in the preparation of the audited accounts relating to the BICC Group for the period ended 31 December 1998 excluding the impact of FRS 11` 2 No account shall be taken of events taking place after Completion and regard shall only be had to information available to the parties to this Agreement at Completion. 3 The Net Asset Statement shall include all assets and liabilities of the Relevant Gorup Companies or those relating to the Operations being transferred other than: 3.1 Cash; 3.2 Third Party Indebtedness; 3.3 Intra-Group Indebtedness; 3.4 Any liability for Taxation; and 3.5 Dividends payable. 4 The Net Asset Statement shall only include the proportionate share of the net assets (as defined in paragraph 3 above) of the Minority Owned Group Companies after taking into account such Group Companies' cash balances and indebtedness - that is the equity accounting method. 5 The Net Asset Statement shall exclude all Intra-Group Indebtedness and all Third Party Indebtedness taken into account in any adjustments to the Purchase Price in accordance with Clause 9.6. 116 6 The Net Asset Statement shall be expressed in pounds sterling. Amounts in other currencies shall be translated into sterling at the exchange rates specified in the Exchange Cross Rates Table published in the Financial Times, London Edition, prevailing at the Completion Date. 117 SCHEDULE 7 PART 2 - DETERMINATION OF INDEBTEDNESS 1 The Estimated Indebtedness Statements and the Actual Indebtedness Statements shall be drawn up in accordance with the provisions of paragraph 1 of Part 1 of this Schedule 7. 2 The Estimated Indebtedness Statements and the Actual Indebtedness Statements shall be expressed in pounds sterling. Amounts in other currencies shall be translated into sterling at the exchange rates specified in the Exchange Cross Rates Table as published in the Financial Times, London Edition, prevailing at the Completion Date. 3 The provisions of Clause 9.2 shall apply mutatis mutandis to the preparation of the Actual Indebtedness Statements. 4 The Indebtedness Statements
RELEVANT GROUP INTRA-GROUP THIRD PARTY COMPANY COUNTER PARTY INDEBTEDNESS INDEBTEDNESS CASH Owed to Owed from (negative (positive amount) amount) BICC General Cable SA BICC NORSPA A/S BICC Novacoes Ltda BICC Argentina SA BICC Ceat Cavi Srl BICC Portugal SGPS SA Condel-Fabrica de Contudores Electricos de Angola SARL
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BICC CAFCA Limited BICC (Central Africa) Private Ltd Zimbabwe Cables (Pte) Ltd BICC Cables New Zealand Limited BICC Cables Asia- Pacific Pte Limited BICC Energy Cagles Pte Ltd BICC Cables (Brunei) Sdn Bhd BICC Cables China Ltd BICC Cables Malaysia Pte Ltd Reliance Cables Pte Ltd BICC-Ducab Investments Ltd Trans-Power Cables Pte Ltd BICC Supertension Cables (1980) Limited Dominion Wire & Cables Limited ----------------------
---------------------- --------------------------------------- --------------------------------------- 119 SCHEDULE 8 WARRANTIES GIVEN BY THE VENDOR UNDER CLAUSE 7 Unless the context otherwise requires, specific references in this Schedule 8 to the BUSINESS SELLERS or to a BUSINESS SELLER shall be deemed to refer to each or such Business Seller only in connection with the Business carried on by the relevant Business Seller (and not to any unrelated business or activity of the relevant Business Seller). 1 AUTHORITY AND CAPACITY 1.1 Each Relevant Seller and each Group Company is a company duly incorporated and validly existing under the laws of its incorporation. 1.2 The Vendor has the legal right and full power and authority to enter into and perform this Agreement and the Tax Deed of Covenant and any other documents to be executed by the Vendor pursuant to or in connection with this Agreement which when executed will constitute valid and binding obligations on the Vendor, in accordance with their respective terms. 1.3 Each of the Relevant Sellers which is a party thereto has the legal right and full power to enter into and perform the Subsidiary Agreements. 1.4 This Agreement, the Tax Deed of Covenant, the Subsidiary Agreements and any other agreements executed or to be executed in connection herewith or therewith, will when duly executed, constitute valid and binding obligations on each of the Relevant Sellers which are party thereto, in accordance with their respective terms. 1.5 The execution and delivery of, and the performance by the Relevant Sellers of their obligations under, this Agreement and the Tax Deed of Covenant and any other documents to be executed by the Relevant Sellers pursuant to or in connection with this Agreement, and the execution and delivery of, and the performance by each Relevant Seller of its obligations under the Subsidiary Agreement to which it is a party and any other documents to be executed by the Relevant Sellers pursuant to or in connection with the Subsidiary Agreements, will not: 120 1.5.1 result in a breach of any provision of the constitutional documents of any Relevant Seller or Group Company; or 1.5.2 subject to the need for any Third Party Consent referred to in Clause 4.1, Schedule 5 or in any Subsidiary Agreement, result in a violation of any law or regulation in any jurisdiction having the force of law or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which any Relevant Seller or Group Company is a party or by which any Relevant Seller or Group Company is bound; or 1.5.3 result in a material breach of, or constitute a default under, any agreement or instrument to which any Business Seller or Group Company is a party. 1.6 All corporate action required to be taken (i) by the Vendor validly and duly to authorise the execution and delivery of, and (ii) by the Relevant Sellers to exercise rights and perform their obligations under, this Agreement, the Subsidiary Agreements and all such action in relation to the Tax Deed of Covenant and any other documents to be executed by the Relevant Sellers pursuant to or in connection with this Agreement, have been duly taken or will have been duly taken by Completion. 1.7 No Third Party Consent is required to authorise the execution, delivery and validity of this Agreement, the Tax Deed of Covenant or the Subsidiary Agreements or (save as set out in Schedule 5 or in any Subsidiary Agreement) the transfer in favour of the Relevant Purchasers of any of the Shares. 2. DISCLOSURE LETTER AND DATA ROOM 2.1 The Disclosure Letter (other than documents attached thereto or listed therein as agreed disclosures) has been prepared by the Vendor in good faith and the Vendor has not knowingly included any matter which is untrue or knowingly omitted from it any matter the omission of which would make its contents materially misleading in the context in which it appears. 2.2 So far as the Vendor is aware, each document specified in the Disclosure Letter as being attached thereto or listed therein as an agreed disclosure is a true and complete 121 copy of the original of such document and, so far as the Vendor is aware, there is no later document which supersedes or replaces any such document. 2.3 The Data Room has been collated by the Vendor in good faith. 3 ACCOUNTS AND RECORDS 3.1 COMBINED ACCOUNTS The Combined Accounts: (a) have been prepared on a basis consistent with the accounting policies and principles set out in paragraph 1, Part 1 of Schedule 7 (excluding the reference to paragraphs 2-6 therein) and the basis of preparation set out therein; (b) fairly present in all material respects the state of affairs of the Operations as at the Balance Sheet Date for the financial year ended on that date. 3.2 MANAGEMENT ACCOUNTS The Management Accounts have been properly prepared in accordance with the principles set out in Part 1 of Schedule 7. 3.3 ACCOUNTING AND OTHER RECORDS The statutory books and books of account and other records of whatsoever kind relating to the Operations are up-to-date and maintained in accordance with all applicable legal requirements on a proper and consistent basis and contain complete and accurate records of all matters required to be dealt with in such books. All such books and records and all other documents (including documents of title for all assets owned by the Business Sellers and Group Companies and copies of all subsisting agreements to which any Group Company or Business Seller is a party) are in the possession (or under the control) of the relevant Group Company or Business Seller and no notice or allegation that any is incorrect or should be rectified has been received. 122 CHANGES SINCE BALANCE SHEET DATE 3.4.1 Since the Balance Sheet Date, the Operations have been carried on in the ordinary course, without any interruption or alteration in their nature, scope or manner and so as to maintain the same as a going concern. 3.4.2 During the period between the Balance Sheet Date and the date of this Agreement, there has been no material adverse change in the financial or trading position of the Operations. 3.4.3 During the period between the Balance Sheet Date and the date of this Agreement, no Wholly Owned Group Company has declared, made or paid to its members any dividend or other distribution, except as provided for in the relevant balance sheet. 3.4.4 Since the Balance Sheet Date, no Relevant Group Company has allotted or issued or agreed to allot or issue any share or loan capital or any other security giving rise to a right over capital. 3.4.5 Since the Balance Sheet Date, no Relevant Group Company has redeemed or purchased or agreed to redeem or purchase any of its share capital. 4 LEGAL MATTERS The Warranties set out at paragraphs 4.1, 4.2 and 4.3 shall not apply to the Properties and no reference to any law or Licence (howsoever expressed) in paragraphs 4.1 or 4.2 below shall be deemed to include a reference (directly or indirectly) to any Environmental Laws (as defined in Schedule 16) or Health and Safety Laws (as defined in paragraph 10 of this Schedule). Save as set out in Schedule 16, it is expressly acknowledged that no representation or warranty is given by or on behalf of the Vendor or the Vendor's Group in this Agreement, in any Subsidiary Agreement or otherwise in respect of any Environmental Laws. The only represenatation or warranty given by or on behalf of the Vendor or the Vendor's Group in respect of Health and Safety Laws is set out in paragraph 10 of this Schedule. 123 4.1 COMPLIANCE WITH LAWS The Operations have at all times been carried on and are being carried on so that there have been no breaches of applicable laws, regulations and by-laws in each country in which they are carried on and there have not been and are not any breaches by any Business Seller or Group Company of its constitutional documents which would have a material adverse effect on the Operations and neither the Vendor nor any Group Company has received notice that there is any investigation or enquiry by, or order, decree, decision or judgment of, any court, tribunal, arbitrator, governmental agency or regulatory body outstanding or anticipated against any Business Seller or Group Company or any person for whose acts or defaults they may be vicariously liable which will have a material adverse effect upon the Operations, nor has any notice or other communication (official or otherwise) from any court, tribunal, arbitrator, governmental agency or regulatory body been issued with respect to an alleged actual or potential violation and/or failure to comply with any such applicable law, regulation, by-law or constitutional document, or requiring it/them to take or omit any action and the Vendor is not aware of any circumstances which are likely to give rise to any such investigation or enquiry. 4.2 LICENCES AND CONSENTS Nothing in this paragraph 4.2 applies to Licences of Intellectual Property Rights (including computer software). 4.2.1 All Third Party Consents (other than those relating to Contracts) which are necessary for the transfer to a Relevant Purchaser of the Operations or any part thereof or the entry into or completion of this Agreement or any Subsidiary Agreement have been obtained (other than those still required, details of which are set out in the Disclosure Letter). 4.2.2 All licences, consents, authorisations, orders, warrants, confirmations, permissions, certificates, approvals and authorities (LICENCES) necessary for carrying on the Operations as now carried on: 124 (i) have been obtained, are in full force and effect, are in the name of the Relevant Business Seller or Group Company, have been and are being complied with in all material respects and are not subject to any unusual or onerous material conditions; and (ii) the Vendor is not aware of any reason why any of them should be suspended, threatened or revoked. 4.3 LITIGATION 4.3.1 During the two year period prior to Completion, no claim for damages or otherwise has been made against any Business Seller or against any Group Company which is or was material in the context of the relevant Business or Group Company. 4.3.2 As at the date hereof, none of the Business Sellers or Group Companies (or any person for whose acts or defaults any Business Seller or Group Company may be vicariously liable) is involved whether as plaintiff or defendant or other party in any claim, legal action, proceeding, suit, litigation, prosecution, investigation, enquiry or arbitration or other legal proceedings or in any proceedings or hearings before any statutory or governmental body, department or agency (other than as plaintiff in the collection of debts arising in the ordinary course of business) which is material in the context of the relevant Business or Group Company and, so far as the Vendor is aware, no such claim, legal action, proceeding, suit, litigation, prosecution, investigation, enquiry or arbitration has been threatened in writing or (so far as the Vendor is aware) is pending by or against any Business Seller or Group Company (or any person for whose acts or defaults any Business Seller or Group Company may be vicariously liable). 4.3.3 As at the date hereof, so far as the Vendor is aware, there are no investigations, disciplinary proceedings or other circumstances likely to lead to any such claim or legal action, proceeding, suit, litigation, prosecution, investigation, enquiry or arbitration. 125 4.3.4 There is no outstanding judgment, order, decree, arbitral award or decision of any court, tribunal, arbitrator or governmental agency against any Business Seller or Group Company (or any person for whose acts the Business Seller or Group Company may be vicariously liable) which is material in the context of the relevant Business or Group Company. 4.4 ENVIRONMENTAL LIABILITY The only environmental warranties relating to the Operations are contained in paragraph 2 of Schedule 16. 4.5 INSOLVENCY 4.5.1 No order has been made, petition presented, resolution passed or meeting convened for the winding up (or other process whereby the business is terminated and the assets of the company concerned are distributed amongst the creditors and/or shareholders or other contributories) of any Group Company or any Business Seller and there are no cases or proceedings under any applicable insolvency, reorganisation or similar laws in any jurisdiction concerning any Group Company or Business Seller and, so far as the Vendor is aware, no events have occurred which, under applicable laws, would justify any such cases or proceedings. 4.5.2 No petition has been presented or other proceedings have been commenced for an administration order to be made (or any other order to be made by which, during the period it is in force, the affairs, business and assets of the company concerned, are managed by a person appointed for the purpose by a court, governmental agency or similar body) in relation to any Group Company or Business Seller in relation to the Operations, nor has any such order been made. 4.5.3 No receiver (including an administrative receiver), liquidator, trustee, administrator, custodian or similar official has been appointed in any jurisdiction in respect of the whole or any part of the business or assets of any Group Company or Business Seller or in respect of any of the Business 126 Seller's Assets and, so far as the Vendor is aware, no step has been taken for or with a view to the appointment of such a person. 4.5.4 No Group Company or Business Seller is insolvent or unable to pay its debts as they fall due. 5 TRADING AND CONTRACTUAL ARRANGEMENTS 6.1 CAPITAL COMMITMENTS There are no material capital commitments entered into or proposed by or on behalf of any of the Business Sellers or Group Companies. For these purposes, a material commitment is one involving capital expenditure of over (pound)400,000. 5.2 ARRANGEMENTS WITH CONNECTED PERSONS ETC. 5.2.1 There is no indebtedness (actual or contingent) nor any material indemnity, guarantee or security arrangement between any Business Seller or Group Company or member of the Vendor's Group and any current or former employee or director of any Group Company or Business Seller or any husband or wife of such persons. 5.2.2 No Business Seller or Group Company or member of the Vendor's Group is or has been party to any material contract, arrangement or understanding with any current or former employee of director of any Group Company or Business Seller or any husband or wife of such persons, or in which any such person as aforesaid is interested (whether directly or indirectly), other than on normal commercial terms in the ordinary course of business. 5.2.3 There are no existing contracts or arrangements with a value in excess of (pound)250,000 per annum between or involving any Business Seller or Group Company and any member of the Vendor's Group. 5.3 CONTRACTS 5.3.1 None of the Business Sellers or the Group Companies is party to any unusual, long-term or onerous commitments, contracts or arrangements or any such not wholly on an arm's length basis in the ordinary course of business. For the purposes of this warranty a long-term commitment, contract or arrangement is 127 one which is incapable of termination by the relevant Business Seller or Group Company on six months' notice or less. 5.3.2 None of the Business Sellers or the Group Companies is party to any commitment, contract or arrangement which: (i) involves hire purchase, conditional sale, sale of receivables, credit sale, leasing, hiring or similar arrangements in each case other than in the ordinary course of business; or (iii) involves income in excess of (pound)5,000,000 (five million pounds) per annum OR, expenditure in excess of (pound)5,000,000 (five million pounds) per annum (a MATERIAL CONTRACT). 5.3.3 None of the Business Sellers or the Group Companies is party to any agency, distributorship, marketing, purchasing, manufacturing or licensing agreement or arrangement or any agreement or arrangement which restricts its freedom to carry on its business as currently carried on in any part of the world in such manner as it thinks fit as to have a material adverse effect on the relevant Business. 5.3.4 There are no powers of attorney or other authorities (express or implied) which are still outstanding or effective to or in favour of any person to enter into any contract or commitment or to do anything on behalf of any Group Company (other than on such authority of directors or of employees as either is ostensible or is implied to enter into routine contracts in the normal course of their duties). 5.4 COMPLIANCE WITH MATERIAL CONTRACTS (i) No Business Seller or Group Company is in material breach of any Material Contracts; and (iii) so far as the Vendor is aware, there are no grounds for rescission, avoidance or repudiation of any of the Material Contracts. 128 5.5 ANTI-TRUST So far as the Vendor is aware, no Business Seller or Group Company is a party to any agreement, arrangement or concerted practice or is carrying on any practice which in whole or in part contravenes or is invalidated by any competition, anti-trust, fair trading, state aid, public procurement consumer protection or similar legislation applicable in any jurisdiction where the Businesses are carried on (including as regards the United Kingdom, and without prejudice to the generality of the foregoing, the provisions of both the Competition Act 1998 and any legislation which ceases or will cease to have effect in whole or in part by virtue of the Competition Act 1998) or in respect of which any filing, registration or notification is, was or will be required by such legislation or is advisable pursuant to such legislation (whether or not the same has in fact been made). 5.6 Neither the Business Sellers nor any Group Company has paid to any person any sum in the nature of a bribe or inducement. 5.7 Neither the Business Sellers nor any Group Company is a party to any material confidentiality or secrecy agreement or undertaking or other agreement which may restrict its use or disclosure of any information. 5.8 Other than restrictive covenants entered into by or binding upon the Business Sellers or the Group Companies, no substantial part of the Operations is carried on under the agreement or consent of third party, nor is there any agreement which significantly restricts the field in which the Business Sellers or the Group Companies carry on the Operations. 5.9 There are not now outstanding any agreements or arrangements (whether by way of guarantee, indemnity, warranty, representation or otherwise) under which any Group Company is under a prospective or contingent liability in respect of any disposal by such Group Company of its assets or business or any substantial part thereof. 5.10 Neither the Vendor nor any member of the Vendor's Group nor any Relevant Seller has given any guarantee or indemnity or created any other like obligation in support of the Businesses or the Group Companies that remains outstanding. 129 5.11 None of the Group Companies have given any indemnity or created any other like obligation in respect of any member of the Vendor's Group or any Relevant Seller which remains outstanding. 5.12 Completion of this Agreement or any Subsidiary Agreement will not result in the creation, crystallisation or enforcement of any charge, mortgage, debenture or other security interest over any material asset of any Business or Group Company. 6 EMPLOYEES 6.1 GENERAL 6.1.1 There are no persons employed in any of the Businesses or Group Companies other than the Employees. 6.1.2 The Disclosure Letter contains details of the numbers and categories of Employees at each Property as at the stated date. The Disclosure Letter also contains details of the numbers and categories of Employees employed at locations other than the Properties. 6.1.3 Where Senior Employees have an individual contract of employment, full details thereof have been disclosed in the Disclosure Letter and where standard terms or collective bargaining arrangements are applicable to Senior Employees, full details thereof have been disclosed in the Disclosure Letter (including details of which Senior Employees are employed on which such terms and conditions and arrangements). 6.1.4 No Business Seller or Group Company is party to any contractual arrangement to make material changes to remuneration or other benefits or other terms of employment or collective bargaining arrangements or to establish any new bonus or other incentive arrangements for the Employees nor have there been any proposals or announcements in relation to such matters. 6.1.5 True, up-to-date and complete copies of a representative sample of the contracts of employment of the different categories of Employees at each 130 Property, and of those Employees employed at locations other than the Properties, and any other material documents currently in force relating to the terms and conditions of employment and benefit entitlements of the Employees have been disclosed in the Disclosure Letter together with copies of all consultancy agreements currently in force relating to any Business or any Group Company. 6.1.6 (i) There is no existing, pending or, so far as the Vendor is aware, threatened dispute between any Business Seller or Group Company and any Employee (or group of Employees) or any consultant or any trade union or employee representatives of any Employee and, (ii) so far as the Vendor is aware, there are no circumstances (including this Agreement and Completion) which are likely to give rise to any such dispute as is referred to in (i). 6.1.7 In the case of each Business Seller in relation to each of its present and former employees employed in any Business, and in the case of each Group Company in relation to each of its present and former employees, so far as the Vendor is aware, each Business Seller and each Group Company has complied in all material respects with all applicable laws and all of its contractual obligations in relation to such employees and their trade unions or employee representatives. 6.1.8 No Business Seller in relation to any Business, and no Group Company, has agreed to make any payment or agreed to provide any benefit, to any employee or former employee or any consultant or former consultant in connection with the actual or proposed termination of employment or consultancy or the actual or proposed variation of any employment contract or consultancy agreement of any such employee or former employee or consultant or former consultant in each case where such agreement to make or provide such payment or benefit has not been discharged or otherwise satisfied. There are no agreements or arrangements whether binding or otherwise, in relation to any Employee for the payment of compensation on 131 the termination of employment (other than as are required by law or in accordance with the contracts of employment, consultancy agreements and details of enhanced redundancy entitlements which are disclosed in the Disclosure Letter). 6.1.9 All of the European Employees are employed by the Vendor or the Relevant Seller at the Completion Date and are employed exclusively in the Businesses and none of the European Employees are required to perform duties for any other person. 6.2 TERMINATION OF EMPLOYMENT For the purposes of this Clause 6.2 only, Senior Consultant means those consultants engaged by the Businesses or the Group Companies whose fees exceed (pound)60,000 per annum. 6.2.1 There are no proposals to terminate the employment of any Senior Employees or Senior Consultants or to materially vary or amend their terms of employment on consultancy (whether to their detriment or benefit). 6.2.2 As at the date of this Agreement: (i) no Senior Employee or Senior Consultant has given or received notice terminating his employment or engagement; and (ii) so far as the Vendor is aware, neither this Agreement nor Completion nor any Subsequent Completion will, or is likely, to cause any such Senior Employee or Senior Consultant to terminate his employment or engagement. 6.2.3 As at the date of this Agreement, no person previously employed by any Business Seller or Group Company has a right to return to work or any right to be reinstated or re-engaged by any Business Seller or Group Company whether under statute or otherwise. 6.2.4 No liability which remains undischarged has been incurred by any Business Seller or Group Company for breach of any contract of service or for 132 termination payments or for compensation for dismissal, equal pay, sex, race, disability or other discrimination or failure to comply with any order for the reinstatement or re-engagement of any of the Employees or former employees of a Business Seller or Group Company. 6.3 PAYMENTS ON TERMINATION 6.3.1 The Business Sellers and each Group Company have paid to the appropriate authorities all taxes and other contributions and charges due and payable in respect of the Employees in respect of their employment by any of the Business Sellers or Group Companies up to Completion or such amounts have been or will be accrued for in the Net Asset Statement. 6.3.2 Particulars of all loans made by any Business Seller or Group Company to Employees or former employees or consultants which are in excess of (pound)2,000 and which shall remain outstanding at Completion, together with any sums promised or owed by the Business Seller or Group Company to any Employee or former employee or consultant (other than remuneration and other contractual benefits accrued in the normal course of business during the calendar month immediately prior to the date of this Agreement) which are in excess of (pound)2,000 are disclosed in the Disclosure Letter. 6.4 TERMINATIONS Within the period of one year preceding the date hereof, where the Business Sellers in relation to the Businesses, or any Group Company, has been obliged by statute to give notice of the termination of employment of any Employee to a relevant authority or start consultations with any employee representative body, for example, a trade union or Works Council, relating to any such termination the relevant Business Seller or Group Company has complied with such obligation. Save as disclosed in the Disclosure Letter there have been no transfers covered by the Transfer Provisions relating to any Business or Group Company. 6.5 COLLECTIVE BARGAINING 133 6.5.1 The national collective bargaining agreements, industry wide collective agreements, the other collective agreements, union recognition agreements and European Works Council agreements, all as disclosed in the Disclosure Letter are in all material respects true, up-to-date and complete copies of all the agreements whether or not legally binding between the Business Sellers or Group Companies and any groups of employees, trade unions or other representative bodies. The Business Sellers and the Group Companies have in all material respects complied with all such agreements. 6.5.2 The Disclosure Letter contains full details of (a) any enhanced redundancy entitlement and any special redundancy procedure applicable to any Employee; and (b) any redundancy programme which is currently being implemented or negotiated in respect of the Employees or any of them and any such programme will be implemented in accordance with its original terms and time schedule between the date of this Agreement and Completion. 6.6 PENSIONS AND OTHER EMPLOYEE BENEFITS 6.6.1 SCHEMES (i) Other than the Employee Benefit Arrangements and the State Schemes there are no arrangements in existence at the date of this Agreement (or in respect of which any proposal or announcement has been made) for the payment of, provision for, or contribution towards, any pensions, allowances, lump sums or other like benefits on retirement, death, disability or voluntary withdrawal from, or involuntary termination of, employment which are for the benefit of any Employee or any past employee of a Group Company or for the benefit of persons dependent on any such Employee or past employee. (ii) Other than the BICC Savings-Related Share Option Scheme 1991, the BICC Executive Share Option Scheme 1991, the BICC UK Executive Share Option Scheme (Unapproved), the BICC CAFCA Share Option Scheme and the BICC Long-Term Incentive Plan (together, the 134 EMPLOYEE SHARE SCHEMES) there are no arrangements in existence for the grant of options over shares and/or for the grant of shares in the Vendor to Employees. 6.6.2 DISCLOSURE (i) There have been disclosed to the Purchaser in the Disclosure Letter copies of such relevant documents governing or relating to the Employee Benefit Arrangements necessary to establish entitlements to benefits together with full information about discretionary practices in relation to the Employee Benefit Arrangements. (ii) There have been disclosed to the Purchaser in the Disclosure Letter copies of all such relevant documents governing or relating to the Employee Share Schemes necessary to establish entitlement to benefits. (iii) There has been disclosed to the Purchaser in the Disclosure Letter for each Employee Benefit Arrangement in respect of which there is a legal requirement to have an actuarial valuation and the liability for which will transfer to the Purchaser after the Completion Date, a copy of the most recent actuarial valuation, together with the latest trustees' report and accounts (or nearest equivalent in jurisdictions outside the United Kingdom). 6.6.3 REGULATION The Employee Benefit Arrangements and the Employee Share Schemes are in material compliance with their terms and with all applicable laws, regulations and government taxation or funding requirements. As far as the Vendor is aware there has been no failure to comply with any applicable law, regulation or requirement, or any other circumstance, which would or might result in the loss of tax approval or other regulatory approval for or qualification of any of the Employee Benefit Arrangements or the Employee Share Schemes. 135 6.6.4 CLAIMS None of the Business Sellers nor the Group Companies is a party to any litigation or other proceedings relating to any of the Employee Benefit Arrangements or the Employee Share Schemes. So far as the Vendor is aware, there is no litigation or other proceedings or outstanding claims in relation to any of the Employee Benefit Arrangements or the Employee Share Schemes which would or might affect any Employee or any past employee of a Group Company or any person dependent on any such Employee or past employee. 6.6.5 DATA A list or computer data of the Employees and any persons dependent on such Employees (and any past employees of a Group Company and any persons dependent on any such past employees) containing all particulars of them necessary to establish their entitlement to benefits under the Employee Benefit Arrangements has been supplied to the Purchaser by electronic submission on 10 March 1999 from Watson Wyatt Partners to Deloitte and Touche. 6.6.6 CONTRIBUTIONS The current rates of employer's and employee's contributions payable in respect of the Employee Benefit Arrangements have been disclosed in the Disclosure Letter and all such contributions up to and including the Completion Date have been paid or will have been paid by the Completion Date. 6.6.7 INSURED BENEFITS All insured benefits under the Employee Benefit Arrangements are now and will up to and including the Completion Date be fully insured under policies effected with insurance companies as disclosed in the Disclosure Letter; such companies have been supplied with all appropriate information and such 136 information was complete and accurate; cover under such policies is provided at the relevant insurance company's normal rates and on its normal terms for persons in good health; all premiums due under such policies have been paid or will have been paid by the Completion Date; and so far as the Vendor is aware, there are no grounds on which any such policies may be avoided. 6.6.8 FUNDING Each of the Employee Benefit Arrangements is fully funded, financed or provided for in accordance with local actuarial and accounting practice and principles for an ongoing pension scheme. 7 TAXATION 7.1 RETURNS AND INFORMATION All returns, computations, notices, information and records which are or have been required to be maintained, made or given by each Group Company for any Taxation purpose have so far as is material been made or given within the requisite periods and on a proper basis and are up-to-date and correct. 7.2 VAT MATTERS RELATING TO THE GROUP COMPANIES Each Group Company has complied in all material respects with all statutory requirements, orders, provisions, directions or conditions relating to VAT. 7.3 RESIDENCE Save as disclosed in the Disclosure Letter, each Group Company is, and has since its incorporation been, resident for tax purposes only in the Jurisdiction in which it is incorporated. 7.4 DOUBLE TAX TREATIES Save as disclosed in the Disclosure Letter, each Group Company is entitled to claim the benefit of any double taxation agreement or convention entered into between the Jurisdiction in which it is resident and any other relevant jurisdiction. 137 7.5 The amount of Taxation chargeable on any Group Company during any accounting period ending on or within three years prior to the Balance Sheet Date has not, to any material extent, depended on any concession, agreement or other formal or informal arrangement with any Taxation authority. 7.6 No chargeable gain or profit would arise if any asset of any Group Company (other than trading stock) were to be realised for a consideration equal to the book value thereof as shown in the Accounts. 7.7 All documents in the possession of any Group Company or to the production of which any Group Company is entitled and which attract stamp or transfer duty in any jurisdiction have been duly stamped. 8 ASSETS AND LIABILITIES 8.1 TITLE 8.1.1 All the Assets (other than Intellectual Property and the Properties but including all debts due to each Group Company or Business Seller) which are included in the Combined Accounts or which at the Balance Sheet Date were used or held for the purposes of the business of each Group Company or Business Seller, were at the Balance Sheet Date the absolute property of such Group Company or Business Seller (save for those subsequently disposed of or realised in the ordinary course of trading) and all such Assets and debts and all Assets and debts which have been acquired or arisen between the Balance Sheet Date and the date hereof are at the date hereof the absolute property of such Group Company or Business Seller and none is the subject of any assignment or Encumbrance (excepting only liens arising by operation of law in the normal course of trading) or the subject of any factoring arrangement, hire-purchase, conditional sale or credit sale agreement. 8.1.2 All the Assets are, where capable of possession, in the possession of or under the control of the relevant Business Seller or Group Company. 8.1.3 The Share Sellers are entitled to sell and transfer to the Purchaser the full legal and beneficial ownership of the Shares on the terms of this Agreement 138 or any Subsidiary Agreement without any Third Party Consent. The Shares comprise the whole of the allotted and issued share capital of the Companies, have been properly and validly allotted and issued and are each fully paid. 8.1.4 A Company or a Group Company (where specified in Schedule 2) is the sole beneficial owner of all the issued or allotted shares of the Subsidiaries free from any Encumbrances and all such shares are fully paid or credited as fully paid. 8.1.5 No person has the right (whether exercisable now or in the future and whether contingent or not) to call for any allotment, conversion, issue, sale or transfer of any share or loan capital or any other security giving rise to a right over the capital of any Group Company under any option or other agreement (including conversion rights and rights of pre-emption) and there are no Encumbrances over such capital or arrangements or obligations to create any such Encumbrances and there is no agreement or commitment to give or create any of the foregoing and no person has claimed in writing to be entitled to any of the foregoing. 8.1.6 All the information set out in Schedules 1 and 2 is complete and accurate in all respects. 8.1.7 The Companies have no: (i) interest in the share capital of, or other investment in, any body corporate other than the Subsidiaries; (ii) interest in any partnership joint venture, consortium or other unincorporated association or arrangement for sharing profit other than the Subsidiaries. 8.1.8 No Group Company has made or is proposing to make any distribution or dividend except out of profits available for the purpose. 139 8.2 INSURANCE Summary particulars of the insurances of the Business Sellers and the Group Companies material to the Operations as at the date of this Agreement are contained in the Data Room. 8.3 MOVEABLE ASSETS The Moveable Assets material to the Operations as currently conducted are in satisfactory working order (allowing for fair wear and tear and having regard to the age of such Assets) and have been properly maintained. 8.4 INTELLECTUAL PROPERTY 8.4.1 REGISTERED INTELLECTUAL PROPERTY (i) The registered Intellectual Property (REGISTERED INTELLECTUAL PROPERTY) listed in Parts A, B and C of Schedule 15, is legally and beneficially owned, free from Encumbrances, by the Group Companies or the Business Sellers. Schedule 15 sets out complete and accurate particulars of all Registered Intellectual Property which is used in connection with the Operations. (ii) All registration, application and renewal fees regarding the Registered Intellectual Property due on or before Completion have been paid in full and all steps have been taken to progress applications and maintain registrations. (iii) The Registered Intellectual Property is not the subject of any challenge, claim or proceedings and as far as the Vendor is aware, there are no facts or matters which give rise to any challenge, claim or proceedings in relation to the Registered Intellectual Property. (iv) The Registered Intellectual Property is not the subject of any licence in favour of another except as set out in Schedule 15. 8.4.2 OTHER INTELLECTUAL PROPERTY (i) All Intellectual Property and Know-how which is material to the Operations is legally and beneficially owned by, licensed to or used 140 under the authority of the owner by the Group Companies or the Business Sellers. (ii) All Know-how legally or beneficially owned by the Group Companies or the Business Sellers is, as far as the Vendor is aware, free from all Encumbrances save for any third party rights disclosed in the Disclosure Letter or Schedule 15. (iii) All Intellectual Property legally or beneficially owned by the Group Companies or the Business Sellers is, as far as the Vendor is aware: (a) valid and enforceable and not subject to any current application for licences of right under the Patents Act 1977 (UK) (or legislation corresponding thereto in other jurisdictions); (b) not being infringed or attacked or opposed by any person; and (c) subject to any third party rights disclosed in the Disclosure Letter or in Schedule 15, free from all Encumbrances. (iv) As far as the Vendor is aware, no activity of any Group Company or Business Seller infringes the Intellectual Property or constitutes the misuse of the Know-how of a third party and neither the Vendor nor any Group Company or Business Seller has received any notification of infringement relating to any such activity. 8.4.3 Schedule 15 details all material licences or rights in respect of any Intellectual Property or Know-how of a third party to which the Group Companies or the Business Sellers are party and all material software contracts to which the Group Companies or Business Sellers are party and (in the case of the Business Sellers) the software is used exclusively or primarily in the Operations. As far as the Vendor is aware, the Group Companies and the Business Sellers have not breached the terms of any Licence Agreement. As far as the Vendor is aware, the Licence Agreements have been and are being complied with in all material respects and the Vendor is not aware of any 141 reason why any of the Licence Agreements should be suspended or terminated. 8.4.4 Save as disclosed in Schedule 15 the Group Companies and the Business Sellers have not granted and are not obliged to grant any licenses under any Intellectual Property and Know-how used in the Operations owned by it or licensed to it by any person. 8.4.5 As far as the Vendor is aware no disclosure has been made to any person other than the Purchaser of any of the Confidential Information (as such term is defined in Clause 21.2.5 for the purposes of Clause 21.2.1) and Know-how, of the Group Companies or Business Sellers which is used in the Operations except in the ordinary course of business and on the footing that such disclosure is to be treated as being of a confidential nature. 8.4.6 As far as the Vendor is aware, there exists no actual or threatened infringement or any event likely to constitute an infringement or breach by any third party of any of the Intellectual Property owned by the Group Companies or the Business Sellers. As far as the Vendor is aware, there exists no actual or threatened mis-use by any third party of any of the Know-how owned by the Group Companies or the Business Sellers. 8.4.7 All patentable inventions made by any employees of a Group Company or the Business Sellers and used in the Operations were made in the course of the normal duties of the employee concerned and no claim for compensation under Section 40, Patents Act 1977 or legislation corresponding thereto in other jurisdictions or otherwise has been made against the Group Companies or the Business Sellers nor so far as the Vendor is aware are any such claims likely to be made. 8.4.8 As far as the Vendor is aware, the Group Companies and the Business Sellers have complied in all respects with the provisions of the Data Protection Act 1984 or legislation corresponding thereto in other jurisdictions. 142 8.4.9 Schedule 15 sets out details of all collaboration and development agreements entered into relating exclusively or primarily to the Operations. 8.4.10 All Intellectual Property and Know-how required for the Operations as currently being carried on are either included in the Assets or are Retained Intellectual Property or Retained Know-how or are owned by or licensed to the Group Companies. 8.4.11 Where Registered Intellectual Propety set ou in Schedule 15 is owned jointly, subjec to any legislative restrictions, there is no impediment to the Business Seller assigning its rights in such Registered Intellectual Property to te Relevant Purchaser under this Agreement 8.5 INFORMATION TECHNOLOGY 8.5.1 Reasonable steps have been taken to back up electronically stored information and software which is critical to the Operations and the Group Companies and the Business Sellers have made reasonable disaster recovery and security arrangements in relation to Information Technology material to the Operations. 8.5.2 As far as the Vendor is aware, in the twelve months prior to the date hereof, the Group Companies and the Business Sellers have not suffered any significant failures or bugs in or breakdowns of Information Technology material to the Operations which either have not been remediated or which are not being remedied at the date hereof and whilst such remedies are being effected the failures, bugs or breakdowns are not causing any significant disruption to any of the Operations. 8.5.3 The Data Room contains an accurate summary of the policies, major steps and progress made by the Group Companies and the Business Sellers to ensure that the Information Technology used in the Operations will be Millennium Compliant and as far as the Vendor is aware, the Group Companies and the Business Sellers have complied with all such policies and steps. 143 8.5.4 For the purposes of this paragraph 8.5, INFORMATION TECHNOLOGY means all computer systems, communications systems, software, computer hardware and other similar information technology used in connection with or required to carry on the business of the Group Companies or Business Sellers (as they relate to the Operations). 8.5.5 For the purposes of paragraph 8.5.3 MILLENNIUM COMPLIANT will have the meaning given to it in BSIPD-DISC 2000-1. 9 PROPERTIES 9.1 PROPERTIES Details of all real property owned or occupied or used by any Business Seller or Group Company are set out in Schedule 13 and the particulars contained or referred to therein are true and correct. 9.2 TITLE Each relevant Business Seller or Group Company listed in Schedule 13 is the legal and (where applicable in the relevant Jurisdiction) beneficial owner of the Property or Properties of the tenure specified against its name. 9.3 RIGHTS AND EASEMENTS Each Property has the benefit of such rights and easements which are necessary for the existing use of the Property. 9.4 PERFORMANCE OF OBLIGATIONS AFFECTING PROPERTIES So far as the Vendor is aware, the relevant Business Seller has not received any subsisting written notice of any material breach of any obligation, condition, restriction, agreement or statutory requirement affecting each Property, its occupation of such Property or the existing use thereof. 9.5 DISPUTES AND NOTICES So far as the Vendor is aware, there is no outstanding dispute or notice affecting any Property which has a material adverse effect on the Operations carried out at such Property. 144 9.6 USE So far as the Vendor is aware, there is no written notice of any outstanding dispute as to the use of the Property or any contravention of the relevant planning legislation or any alleged breach of planning legislation which has a material adverse effect on the Operations carried out at such Property. 9.7 PLANNING/HIGHWAYS In relation to each of the Business Seller's Properties in England and Wales: 9.7.1 The Vendor is not aware of any subsisting notices of breaches of the Planning and Highway Laws. 9.7.2 No planning application has been submitted by the Vendor which awaits determination. 9.7.3 So far as the Vendor is aware no: (i) enforcement action within the meaning of section 171A(2) of the Town and Country Planning Act 1990; (ii) claim for breach of any Planning Agreement; or (iii) prosecution under the terms of any permission, authorisation or agreement under Planning and Highway laws or in connection with such Laws which is subsisting has been served upon the Vendor by any relevant Planning Authority in respect of any such Business Seller's Properties. 9.7.4 So far as the Vendor is aware, no Group Company is required under Planning and Highway Laws to incur any material expenditure or take or desist from taking any action which would require unbudgeted expenditure under the 1999 budget of BICC Cables - BICC Energy (disclosed in the Data Room) on any such Business Seller's Properties in excess of (pound)100,000 per item of expenditure or loss as the case may be. For the purposes of warranty 9.7 the following definitions will apply: 145 PLANNING AGREEMENT means any legally binding agreement made between the Vendor and any Planning Authority in respect of such Business Seller's Properties under section 52 of the Town and Country Planning Act 1971, section 106 of the Town and Country Planning Act 1990 and section 278 of the Highways Act 1980 or such equivalent predecessor statutory provisions; PLANNING AUTHORITY means any local or central government authority granted powers under Planning and Highway Laws; and PLANNING AND HIGHWAY LAWS means all the laws of the United Kingdom relating to town and country planning and the use of public highways that may apply to such Business Seller's Properties. 9.8 LEASES So far as the Vendor is aware: (i) there is no material breach of lease terms which are likely to adversely affect the business carried out at the relevant Property; (ii) any principal rent payable in respect of the Property is not in the course of being reviewed other than on rent review terms provided in the relevant Lease. 9.9 PROPERTY SUBJECT TO OCCUPATIONAL INTERESTS Where any Property is subject to any lease or licence in favour of a third party, so far as the Vendor is aware it has had no reason to notify the lessee or licensee of any breach of its obligations under the lease or licence. 9.10 TITLE All the documents relating to the title to each of the Business Sellers' Properties in England and Wales have been produced to the Purchaser's Lawyers (save as disclosed by the Special Conditions of Sale). 9.11 ENQUIRIES So far as the Vendor is aware the written replies given by or on behalf of the Vendor to enquiries raised by the Purchaser's Lawyers in respect of each of the Properties in 146 England , Wales and Italy are true, complete and accurate in all respects and not misleading. 9.12 BICC SUPERTENSION CABLES (1980) LIMITED The Company known as BICC Supertension Cables (1980) Limited has not at any time been the owner of any interest in real property whether freehold or leasehold. 10 HEALTH & SAFETY 10.1 DEFINITIONS: 10.1.1 HEALTH AND SAFETY LAWS means all applicable laws (including for the avoidance of doubt common law) statutes regulations statutory guidelines and final and binding court and other tribunal decisions of any relevant jurisdiction or any constituent part thereof (including without limitation the law of the European Union) in force in the relevant jurisdiction at Completion which relate to the health and safety (including for the avoidance of doubt the protection of hearing) of employees contractors and invitees in the workplace and all bylaws, codes, regulations, decrees, demands or demand letters, injunctions, judgements, notices or notice demands, orders or plans issued or promulgated or approved thereunder or in connection therewith to the extent that the same have force of law at Completion. 10.1.2 HEALTH AND SAFETY PROCEEDINGS MEANS: (a) any civil, criminal or regulatory suit or proceedings; (b) any application for judicial review; (c) any arbitration or dispute resolution procedure; (d) any application for injunctive relief or for a declaration; (e) any investigation undertaken by or on behalf of any relevant regulatory authority under Health & Safety Laws pursuant to which the authority may order enforcement action or compel Remedial Action; and (f) any court order, or any statutory or legislative notice or written notification issued by a relevant regulatory authority forming part of an administrative or judicial action or regulatory procedure which 147 determines a violation of any Health and Law, assesses any civil, regulatory or criminal penalty, prohibits or imposes restrictions upon the operations of the Business or which requires action to be taken or operations to be modified. relating to, concerning or affecting any Health and Safety Laws. 10.1.3 "RELEVANT PERIOD" shall bear the meaning ascribed to it in Schedule 16. 10.2 HEALTH AND SAFETY WARRANTIES: 10.2.1 Each Group Company and Business Seller is operating and so far as the Vendor is aware during the Relevant Period has conducted the Operations in compliance in all material respects with Health and Safety Laws. 10.2.2 Neither the Vendor nor any Group Company has received written notice during the Relevant Period of Health and Safety Proceedings against the Vendor or any Group Company or its past or present directors, secretary or senior employees in their capacity as such. 10.2.3 Neither the Vendor nor any Group Company has received written notification during the Relevant Period that it is or is likely to be required by any Health and Safety Laws or as a result of any Health and Safety Proceedings to incur any material expenditure or to desist from taking any action which might have a material adverse effect on the financial condition of the Operations. 148 SCHEDULE 9 WARRANTIES FROM THE PURCHASER 1 AUTHORITY AND CAPACITY 1.1 The Purchaser is and each Relevant Purchaser is or will on Completion be a company duly incorporated and validly existing under its respective laws of incorporation. 1.2 The Purchaser has and each Relevant Purchaser will have, the legal right and full power and authority to enter into and perform this Agreement and any other agreement entered into pursuant to this Agreement and each such agreement when executed will constitute valid and binding obligations on the Purchaser, and/or each Relevant Purchaser (as the case may be) in accordance with their respective terms. 1.3 The execution and delivery of, and the performance by the Purchaser and/or each Relevant Purchaser (as the case may be) of their respective obligations under, this Agreement and any other agreement entered into pursuant to this Agreement will not: 1.3.1 result in a breach of any provision of the constitutional documents of the Purchaser and/or each Relevant Purchaser (as the case may be); or 1.3.2 result in a breach of any agreement, licence or other instrument, order, judgment or decree of any Court, governmental agency or regulatory body to which the Purchaser and/or each Relevant Purchaser (as the case may be) is a party or by which the Purchaser and/or each Relevant Purchaser (as the case may be) is bound. 1.4 All corporate action required by the Purchaser and/or each Relevant Purchaser (as the case may be) validly and duly to authorise the execution and delivery of, and to exercise its rights and perform its obligations under, this Agreement and any other agreement entered into pursuant to this Agreement has been duly taken. 2 FINANCING 149 The Purchasers' Guarantor has entered into a definitive commitment letter and term sheet with The Chase Manhattan Bank and Chase Securities Inc. (collectively, CHASE), dated 6th April 1999, which among other things, commits Chase to provide up to approximately $1,100,000,000 of senior secured financing (such commitment letter and term sheet, being the COMMITMENT). The Commitment has not been modified or amended in any respect (except as approved in writing by the Vendor) and is in full force and effect as of the date hereof and as of the Completion Date. Together with proceeds to be made available under the Commitment, the Purchasers' Guarantor has available, and will make available to each Purchaser and Relevant Purchaser (as defined in both this Agreement and the North American Sale and Purchase Agreement), sufficient funds to pay the Purchase Price (as defined in both this Agreement and the North American Sale and Purchase agreement) and consummate the transactions contemplated pursuant to each such agreements in accordance with the terms and conditions thereof. The Purchasers' Guarantor is not aware of any fact or circumstance which would prevent the financing described in the Commitment from being provided to the Purchaser. 150 SCHEDULE 10 TRANSFER TAXES AND VAT 1 UK - VAT GENERAL The parties intend that the UK Business shall be sold as a going concern for VAT purposes and accordingly the following actions shall be taken in the United Kingdom: 1.1 the Vendor and the Purchaser shall when required to do so give notice of such sale, or procure that notice of such sale is given, to the relevant Taxation authorities as may be required by law; 1.2 the Vendor (having obtained any necessary direction from any Taxation authority) shall procure that all records are retained and preserved in such a manner and for such periods as may be required by law and to give the Purchaser as from Completion reasonable access during normal business hours to such records; and 1.3 after Completion the Purchaser shall, or shall procure that the Relevant Purchaser shall, to the extent required by applicable law for the purposes of any exemption or relief from VAT: 1.3.1 use the Assets comprised in the UK Business in carrying on the same kind of business, whether or not as part of any existing business of the Relevant Purchaser, as that carried on by the Vendor; and 1.3.2 be registered for VAT or (as a result of acquiring the UK Business) be liable to be registered, in the same country as the Vendor. 2 UK - GOING CONCERN 2.1 The Vendor shall promptly apply to HM Customs and Excise for confirmation that the sale of the UK Business is to be treated as neither a supply of goods nor a supply of services for VAT purposes. The Vendor and Purchaser shall promptly agree the form of that application and use all reasonable endeavours to ensure that satisfactory confirmation is obtained as soon as possible thereafter from HM Customs and Excise that the sale is to be so treated. 151 2.2 If and to the extent that HM Customs and Excise have before Completion expressly indicated that the sale of the UK Business cannot be treated in the manner contemplated by paragraph 1 above, the Purchaser shall (against production of tax invoices in respect thereof) in addition to any amounts expressed in this Agreement to be payable by the Purchaser pay on Completion the amount of any VAT which as a result of that indication may be chargeable on the sale of the UK Business under this Agreement. If no such indication shall have been given before Completion, then no amount in respect of VAT shall be paid by the Purchaser on Completion, but to the extent that VAT shall subsequently be determined by the relevant Taxation authority to be payable on the sale of the UK Business, the Purchaser shall in addition to any amount expressed in the Agreement to be payable by the Purchaser pay to the Vendor such VAT and, unless due to unreasonable delay or default by the Vendor, any penalty or interest incurred by the Vendor for late payment thereof, such payment by the Purchaser to be made forthwith against evidence that the due date for payment of such tax has fallen due or will fall due within seven days or if later against delivery by the Vendor to the Purchaser of the appropriate tax invoice. 2.3 Nothing in this paragraph 2 shall require the Vendor to make any appeal to any tribunal or court against or otherwise challenge any determination of any Taxation authority that the sale does not fall to be treated as the transfer of a going concern. 2.4 If any amount paid by the Purchaser to the Vendor in respect of VAT relating to the sale of the UK Business pursuant to this Agreement is subsequently found to have been paid in error the Vendor shall if has not yet been accounted for the VAT to the relevant Taxation authority, procure that such amount is promptly repaid to the Purchaser, and if such VAT has already been so accounted for then the Vendor shall at the expense of the Purchaser use reasonable endeavours to obtain repayment thereof from the relevant Taxation authority and on receiving repayment from the relevant Taxation authority shall pay to the Purchaser the total amount repaid together with any repayment supplement. 152 The Vendor warrants that no Property comprised in the UK Business is a capital item the input tax on which may be subject to adjustment in accordance with the provisions of Part XV of the Value Added Tax Regulations 1995. 3 UK PROPERTIES AND VAT 3.1 Where in relation to any Property comprised in the UK Business the Vendor has within 14 days prior to Completion: 3.1.1 notified the Purchaser in writing that the transfer of that Property under this Agreement would, but for the sale being treated in the manner contemplated in paragraph 1 above, fall within paragraph (a) of Item 1 of Group 1 of Schedule 9 VATA 1994; or 3.1.2 notified the Purchaser in writing that the Vendor or a relevant associate of the Vendor (as defined for the purposes of the relevant legislation) has elected under the provisions of Article 13(C)(b) of the EEC Sixth Directive (77/388/EEC) and that the election has not been revoked and has delivered to the Purchaser a certified copy of such election together with a certified copy of the written permission of the relevant Taxation authority to make such election where such written permission is required by law; the Relevant Purchaser shall elect under the provisions of Article 13(C)(b) of the EEC Sixth Directive (77/388/EEC) in relation to that Property with effect on or prior to the earliest date on which the Property concerned is to be transferred and shall give written notification to the relevant Taxation authority as required by law no later than that date and shall not seek the revocation of the election prior to the transfer of the Property. The Purchaser shall deliver copies of such election stamped by the relevant Taxation authority showing receipt thereof and in default of delivery thereof by Completion shall in addition to any amounts expressed in the Agreement to be payable by the Purchaser (on behalf of the Relevant Purchaser) in respect of the said Property pay to the Vendor at Completion (against delivery by the Vendor of an appropriate tax invoice for VAT purposes) an additional amount in respect of VAT thereon. 153 3.2 Save as the Vendor shall have notified otherwise to the Purchaser in writing in accordance with paragraph 3.1, neither the Vendor nor any relevant associate has made an election under the provisions of Article 13(C)(b) of the Sixth Directive (77/388/EEC), in relation to any land or buildings to be transferred under this Agreement, and no transfer of land or buildings under this Agreement would, but for the sale being treated as neither a supply of goods nor a supply of services for VAT purposes, fall within paragraph (a) of Item 1 of Group 1 of Schedule 9 VATA 1994. 4 OTHER BUSINESSES AND SHARES - VAT 4.1 Any VAT which is payable in respect of the sale of any Shares or of the Businesses other than the UK Business shall be paid by the Purchaser in addition to the consideration expressed to be payable in Clause 3. Such VAT shall be paid by the Purchaser on Completion, unless the Purchaser applies or requests the Vendor to apply for any relief or exemption from VAT. If an application is made for any relief or exemption from VAT but the relevant Taxation authority determines that such relief or exemption is not available, the Purchaser shall promptly pay, on receipt of such determination to the Vendor an amount in respect of any VAT chargeable on the sale of the relevant Shares or Business together with any interest and penalties incurred for late payment thereof (unless due to unreasonable delay or default by the Vendor). 4.2 The Vendor shall, at the expense of the Purchaser, provide the Purchaser with such reasonable assistance as the Purchaser may request in order to obtain any relevant exemption or relief from VAT in the relevant jurisdictions in respect of the sale of any of the Shares or Businesses other than the UK Business. 5 TRANSFER TAXES The Purchaser and the Vendor shall each pay, or procure payment of, 50 per cent of all stamp and other transfer and registration taxes and duties payable in respect of the sale and purchase of the Operations. 154 SCHEDULE 11 EMPLOYEES 1 COMPANIES EMPLOYEES 1.1 The Vendor shall procure that each Relevant Group Company shall where required by the relevant local law inform and consult with recognised trade unions or other employee representatives about the sale of the Shares and/or fulfil any obligations to notify any statutory or other authority whatsoever about the sale of the Shares. 1.2 The Vendor (on behalf of itself and the Relevant Seller) and the Purchaser (on behalf of itself and the Relevant Purchaser) shall give each other such assistance as either may reasonably require in contesting or otherwise dealing with any claim by any Companies Employee resulting from or in connection with this Agreement. 2 EUROPEAN EMPLOYEES 2.1 The Vendor (on behalf of itself and the Relevant Seller) and the Purchaser (on behalf of itself and the Relevant Purchaser) accept and agree that by virtue of Completion the Transfer Provisions shall operate to transfer the contract of employment of each European Employee to the Relevant Purchaser in accordance with the legal effect of the Transfer Provisions in the relevant European Country and accordingly the Purchaser shall, or shall procure that the Relevant Purchaser shall, in so far as the Transfer Provisions in the relevant European Country requires employ each such European Employee with effect from the Completion Date (which shall be the time of transfer under the Transfer Provisions) and the Purchaser shall, or shall procure that the Relevant Purchaser shall, in so far as the Transfer Provisions in the relevant European Country requires treat each such Employee's continuous period of service with the Vendor or Relevant Seller as continuous with such Employee's continuous period of service with the Relevant Purchaser. 2.2 Save as otherwise provided in the Net Asset Statement the Vendor will, or will procure that each Relevant Seller will, perform and discharge all their obligations in respect of each European Employee in relation to any period prior to the Completion Date (which shall for the avoidance of doubt include, but not be limited to wages, salary, 155 bonus, commission, pension contributions and taxes arising out of the employment relationship). 2.3 Save as otherwise provided in the Net Asset Statement the Purchaser will, or will procure that the Relevant Purchaser will, perform and discharge all their obligations transferred to them under the Transfer Provisions in the relevant European Country in respect of each European Employee in relation to any period from and including the Completion Date (which shall for the avoidance of doubt include, but not be limited to, wages, salary, bonus, commission, pension contributions, and taxes arising out of the employment relationship). 2.4 The Vendor (on behalf of itself and the Relevant Seller) shall be responsible for and shall fully indemnify and keep indemnified the Purchaser (on behalf of itself and the Relevant Purchaser) from and against all and any Employment Liabilities arising from any actual or alleged act or omission of the Vendor or the Relevant Seller in relation to any European Employee in respect of any period prior to the Completion Date (whether brought by a European Employee or any trade union or other employee representative) including those which are deemed by virtue of the Transfer Provisions in the relevant European Country to be an act or omission of the Relevant Purchaser (including the Purchaser) after the Completion Date (provided that for the avoidance of doubt it is agreed this indemnity is not intended to indemnify the Purchaser from and against any Employment Liabilities arising on or after the Completion Date solely by reason of the Vendor or Relevant Seller entering into a contract of employment or collective agreement in the normal course of business so far as in the case of a contract of employment such contract is in a form disclosed in the Data Room and, in the case of a collective agreement, it is disclosed in the Data Room. 2.5 The Purchaser (on behalf of itself and the Relevant Purchaser) shall be responsible for and shall fully indemnify the Vendor and keep the Vendor indemnified (on behalf of itself and the Relevant Seller) from and against all and any Employment Liabilities arising from any actual or alleged act or omission of the Purchaser or the Relevant Purchaser in relation to any European Employee (except those Employees who fall 156 within Clause 2.6 below) in relation to any period on or after the Completion Date (whether brought by a European Employee or any trade union or other employee representative). 2.6 If, within the period of three months following the Completion Date, the Transfer Provisions are found not to apply to any person who is a European Employee, the Purchaser (on behalf of itself and the Relevant Purchaser) agrees that: (g) in consultation with the Vendor, the Relevant Purchaser shall within five Business Days of being so requested by the Vendor, or if the Relevant Purchaser so chooses, make or procure to be made to each such European Employee an offer in writing to employ him or her under a new contract of employment to take effect upon the termination referred to below; and (h) the offer to be made will be such that (i) the provisions of the new contract shall be as nearly the same as the corresponding provisions of his or her contract of employment as existing immediately prior to Completion as is reasonably practicable save as to the identity of the employer and (ii) it provides that his or her period of continuous service with the Relevant Seller shall be counted as continuous service with the Relevant Purchaser. Upon that offer being accepted, the Vendor shall terminate (or procure the termination of) the employment of the European Employee concerned and the Purchaser shall (on behalf of itself and the Relevant Purchaser) be responsible for and shall indemnify the Vendor or the Relevant Seller from and against all and any Employment Costs and Employment Liabilities arising from any actual or alleged act or omission of the Purchaser or the Relevant Purchaser in relation to such European Employee on or after the date of commencement of the relevant European Employee's employment with the Purchaser or the Relevant Purchaser. To the extent that the Purchaser or the Relevant Purchaser has between Completion and the date of commencement of such employment enjoyed the services of any such European Employee the Purchaser (on 157 behalf of itself and the Relevant Purchaser) shall reimburse the Vendor or the Relevant Seller in respect of any Employment Costs which the Vendor or Relevant Seller has thereby incurred on or after the Completion Date. 2.7 The parties intend that the Transfer Provisions shall only be applicable in relation to the European Employees and accordingly the Vendor (on behalf of itself and the Relevant Seller) shall fully indemnify and keep indemnified the Purchaser (on behalf of itself and the Relevant Purchaser) from and against all Employment Costs and Employment Liabilities arising under or in relation to: (a) any contract of employment (including, without prejudice to the generality of the foregoing the termination thereof) with; or (b) any duty or liability of the Vendor or the Relevant Seller in relation to any matter whatsoever (whether arising before or after the Completion Date) to; any former, existing or future employee of the Vendor or the Relevant Seller who is not a European Employee, or any trade union or employee representative(s) of any such employee, and which contract, duty or liability is transferred to the Relevant Purchaser (including the Purchaser) by operation of law or is alleged to have been so transferred. 2.8 As soon as practicable after Completion, the Vendor (on behalf of itself and the Relevant Seller) shall deliver to the Purchaser (on behalf of itself and the Relevant Purchaser) either originals or copies (if originals no longer exist or are not under the Vendor's or Relevant Seller's custody or control) of all records in relation to taxes arising out of the employment relationship and of any other documents or records (including, but not limited to, personnel records and files) which are relevant to the European Employees provided that: (a) the Vendor or the Relevant Seller shall be entitled as far as the law allows to retain a copy of any such record or document where the original is delivered to the Purchaser (on behalf of itself or the Relevant Purchaser); 158 (b) in the event of the Vendor or the Relevant Seller being a party to any claim by or against any European Employee arising after Completion, the Purchaser shall, or shall procure that the Relevant Purchaser shall so far as the law permits and at the reasonable cost of the Vendor, allow the Vendor reasonable access to any and all records and documents, in its possession which are or are likely to be relevant to such claim; (c) in the event that the Purchaser or the Relevant Purchaser intends at any time after Completion to dispose of or destroy any such records or documents, the Purchaser shall not, or shall procure that the Relevant Purchaser shall not, do so without first informing the Vendor of its intention and if the Vendor so requests the Purchaser shall, or shall procure that the Relevant Purchaser shall so far as the law permits and at the reasonable cost of the Vendor, as soon as practicable deliver such records or documents as the Vendor may request to the Vendor. 2.9 The Vendor shall, or shall procure that the Relevant Seller shall and the Purchaser shall, or shall procure that the Relevant Purchaser shall, inform and consult with recognised trade unions or any elected representatives, as appropriate, to the extent required by the Transfer Provisions in the relevant European Country and the Vendor (on behalf of itself and the Relevant Seller) and the Purchaser (on behalf of itself and the Relevant Purchaser) shall indemnify each other against any Losses they may incur as a result of that person's failure to adhere to its particular obligations under the Transfer Provisions in the relevant European Country. The Purchaser warrants on its own behalf and on behalf of the other Relevant Purchasers, that each of them has given to the Vendor all information required by the Vendor in order for the Vendor to fulfil its obligations under Article 6 of the Transfer Provisions in the relevant European Country. 2.10 The Vendor (on behalf of itself and the Relevant Seller) and the Purchaser (on behalf of itself and the Relevant Purchaser) shall each notify the other on becoming aware of any claim which might give rise to any liability to indemnify the other under the 159 paragraphs of this clause 2 and shall give each other such assistance as either may reasonably require: (a) to comply with the Transfer Provisions in the relevant European Country in relation to the European Employees; (b) in contesting or otherwise dealing with any claim by any European Employee resulting from or in connection with this Agreement. 2.11 On the Completion Date the Vendor (on behalf of itself and the Relevant Seller) and the Purchaser (on behalf of itself and the Relevant Purchaser) shall jointly communicate to the European Employees an agreed notice. 3 OTHER EMPLOYEES 3.1 In sufficient time to allow proper contractual or statutory notice of termination of employment to be given by the Relevant Seller or in such timescale as the parties may agree but in any event prior to the Completion Date, the Purchaser shall, or shall procure that the Relevant Purchaser shall, make or procure to be made, an offer to each Other Employee (other than those under notice of termination of employment (for whatever reason) at the time the Purchaser or the Relevant Purchaser makes its offer) to employ him or her under a new contract of employment to commence immediately from the Completion Date. The offer to be made will be such that: (a) the provisions of the new contract shall be as nearly the same as the corresponding provisions of his or her contract of employment as existing immediately prior to Completion as is reasonably practicable, save as to the identity of the employer; (b) it provides that his or her period of continuous service with the Relevant Seller shall be counted as continuous service with the Relevant Purchaser. 3.2 If an Other Employee wishes to accept the offer referred to in paragraph 3.1 above, then the Vendor shall, or shall procure that the Relevant Seller shall so far as permitted by law waive any requirement on the Other Employee concerned to give any period of notice of termination of his or her employment under the terms of his or 160 her employment so as to allow the Other Employee to commence employment with the Relevant Purchaser from the Completion Date. 3.3 The Vendor (on behalf of itself and the Relevant Seller) and the Purchaser (on behalf of itself and the Relevant Purchaser) shall give each other such assistance as either may reasonably require in contesting or otherwise dealing with any claim by any Other Employee resulting from or in connection with this Agreement. 3.4 The Vendor (on behalf of itself and the Relevant Seller) shall be responsible for and shall fully indemnify and keep indemnified the Purchaser (on behalf of itself and the Relevant Purchaser) from and against all and any Employment Costs and Employment Liabilities arising, directly or indirectly, from any actual or alleged act or omission of the Relevant Seller in relation to the Other Employees prior to the Completion Date including any which are deemed by virtue of relevant local law to be an act or omission of the Relevant Purchaser after the Completion Date. 3.5 The Purchaser (on behalf of itself and the Relevant Seller) shall, be responsible for and shall fully indemnify and keep indemnified the Vendor (on behalf of itself and the Relevant Seller) from and against all Employment Costs and Employment Liabilities in relation to any Other Employees who accept the offer referred to in paragraph 3.1 above arising from any actual or alleged act or omission of the Relevant Purchaser after the Completion Date or, if later, on or after the date of commencement of the such employee's employment with the Relevant Purchaser. To the extent that the Purchaser or the Relevant Purchaser has between Completion and the date of commencement of such employment engaged the services of any such Other Employee the Purchaser (on behalf of itself and Relevant Purchaser) shall reimburse the Vendor or the Relevant Seller in respect of any Employment Costs which the Vendor or the Relevant Seller has thereby incurred on or after the Completion Date. 3.6 On the Completion Date the Vendor (on behalf of itself and the Relevant Seller) and the Purchaser (on behalf of itself and the Relevant Purchaser) shall jointly communicate to the Other Employees an agreed notice. 161 4 SHARE SCHEMES The Vendor undertakes that: 4.1 it will meet in full its obligations under the terms of the BICC Savings-Related Share Option Scheme 1991, the BICC Executive Share Option Scheme 1991, and the BICC UK Executive Share Option Scheme (Unapproved) ("the Option Schemes") and the BICC Long-Term Incentive Plan ("the Plan") to Employees who are participants in the Option Schemes and/or the Plan and procure that BICC Employees' Trustees Limited in its capacity as Trustee of the BICC Employee Share Ownership Trust meets its obligations to Employees who are participants in the Plan; 4.2 it will inform the Purchaser as soon as reasonably practicable if it receives from any of the Employees a valid notice of exercise of an option under the Option Schemes or if the interest of any of the Employees under the Plan vests and in such event pay to the Purchaser in cleared funds the full amount which the Purchaser or other of the Relevant Group Companies is liable to pay by way of tax or social security contributions to the Inland Revenue or other relevant governmental authorities arising out of the said exercise or vesting; 4.3 it will indemnify the Purchaser or other Relevant Group Companies in respect of any Taxation arising out of the failure of the Vendor to make any of the payments required by paragraph 4.2 above; 4.4 all sums payable by the Vendor to the Purchaser under paragraph (c) above shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by law. If any deductions or withholdings are required by law the Vendor shall be obliged to pay to the Purchaser such sum as will after such deduction or withholding has been made leave the Purchaser 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; 4.5 if any Taxation authority charges to Taxation any sum paid to the Purchaser under paragraph 4.3 above then the amount so payable shall be grossed up by such amount as will ensure that after payment of the Taxation so charged there shall be left 162 a sum equal to the amount that would otherwise be payable under paragraph 4.3 above. 5 SINGAPORE EMPLOYEES The parties shall between the date of this Agreement and the Completion Date meet to determine whether the six Singapore-based expatriate European Employees whose names are set out in page 1 of the list in the agreed terms working for BICC Cables Asia-Pacific Pte Ltd (BICCAP) as at the date of this Agreement shall continue to be employed in the Operations in Singapore whether as secondees to BICCAP, on the basis of short term employment with BICCAP, or otherwise. To the extent the parties determine that the said employees shall not be employed in the Operations in Singapore following Completion, or Subsequent completion, or that such employment will not last for more than six months from the Completion Date (or Subsequent Completion Date as the case may be), the Vendor shall be responsible for all Losses incurred in terminating the employment of these Singapore-based expatriate European Employees. 163 SCHEDULE 12 EMPLOYEE BENEFIT ARRANGEMENTS 1 In this Schedule, the following expressions shall, unless the context otherwise requires, have the following meanings: ACTUARY means the Vendor's Actuary or the Purchaser's Actuary as the context requires THE PARTICIPATION PERIOD means the period commencing on Completion and ending six months thereafter or on such other date as the parties (with the consent of the Inland Revenue) shall otherwise agree THE PAYMENT DATE means such date agreed by the Vendor and the Purchaser being not more than one calendar month after the later of: (a) the date of determination of the aggregate of the Transfer Values; and (b) the date on which the Vendor receives confirmation from the Purchaser that the Purchaser's Scheme is legally able to receive a transfer payment from the relevant Vendor's Scheme such confirmation to include a copy of the PSO approval (if necessary) to the said transfer payment and any requisite DSS documentation; and (c) the date on which the Vendor receives copies of the consents referred to in the definition of the Transferring Employees THE PENSION TRANSFER DATE means the day after the last day of the Participation Period PENSIONABLE EMPLOYEES means such Employees who are active members of either of the Vendor's Schemes at Completion PURCHASER'S ACTUARY means such actuary as the Purchaser may appoint PURCHASER'S SCHEME means the retirement benefits scheme or schemes established or nominated pursuant to paragraph 5.2 164 UK PURCHASER means the Relevant Purchaser of the Business in the United Kingdom VENDOR'S ACTUARY means such actuary as the Vendor may appoint THE VENDOR'S LETTER means each of the letters written by the Vendor's Actuary to Mr. D I Thackray dated 31 March 1999 copies of which are annexed hereto VENDOR'S SCHEMES means the two retirement benefits schemes known as the BICC Group Pension Fund and the BICC Group Senior Executive Pension Fund respectively THE TRANSFER AMOUNT means the aggregate of the Transfer Values adjusted to the Payment Date as specified in the relevant Vendor's Letter THE TRANSFER VALUE means the sum or sums calculated in respect of each Transferring Employee in accordance with the actuarial method and assumptions as set out in the relevant Vendor's Letter at the Pension Transfer Date and includes, for the avoidance of doubt, the amount in respect of additional voluntary contributions paid to purchase added years at that date. The Transfer Value in respect of each Transferring Employee will not be less than the cash equivalent for each such employee at the Pension Transfer Date as required under Part IV Chapter IV of the Pension Schemes Act 1993 THE TRANSFERRING EMPLOYEES means such Pensionable Employees who become members of the Purchaser's Scheme with effect from the Pension Transfer Date and who immediately before the Pension Transfer Date were active members of either of the Vendor's Schemes and who before the Payment Date consent to the transfer of their accrued benefits under the relevant Vendor's Scheme to the Purchaser's Scheme, such consent to be in writing, and do not withdraw their consent prior to the Payment Date 2 In respect of the Vendor's Schemes, during the Participation Period the Purchaser shall procure that there shall be paid in respect of each Pensionable Employee the following contributions so long as they remain active members of the appropriate scheme: 165 GROUP PENSION FUND Contributions to the BICC Group Pension Fund are at the following rates which are based on the standard annual earnings (as defined in the rules of the Fund), less a deduction of (pound)2964 pa for each member. Employer contribution: Senior Executive Pension Fund members who joined that Fund prior to 1 January 1994 16.8% per annum All other members 13.2% per annum Members contribution: All members 5% per annum SENIOR EXECUTIVE PENSION FUND For the Senior Executive Pension Fund members there is an additional employer contribution to the BICC Group Senior Executive Pension Fund based on standard earnings (as defined in the Fund rules) less (pound)2964 per annum at the rate of 4.3% per annum thereof for seNIOR management roll members and at the rate of 12.0% per annum thereof for executive roll members and senior executive roll members. All such employer and member contributions (which will be inclusive of all liability to contribute to the administration and management and other costs of the Vendor's Schemes) shall be remitted to the trustees of the relevant Vendor's Scheme within 14 days of the end of the calendar month in respect of which the contributions were due or collected, as appropriate. 3 If the Purchaser fails to procure the payment of the contributions referred to in paragraph 2 the Vendor may either make the payment itself and recover the amount from the Purchaser as a debt or notify the relevant trustees that the contributions cannot be made, in which case the trustees may elect by notice in writing to the Purchaser to cease to permit the UK Purchaser to participate in the relevant scheme. 166 4 Up to and including the Payment Date, the Vendor shall ensure that: 4.1 subject to the consent of the Inland Revenue the Vendor will use its best endeavours to ensure that the UK Purchaser can participate in the Vendor's Schemes in respect of the Pensionable Employees during the Participation Period; 4.2 the Vendor's Schemes remain in full force and effect in respect of the Pensionable Employees and retain their contracted out and Inland Revenue approved status; 4.3 no alterations are made to, or powers or discretions exercised under, the Vendor's Schemes which affect the accrued, contingent or future interests of the Pensionable Employees except with the consent of the Purchaser (such consent not to be unreasonably withheld or delayed); 4.4 all death-in-service benefits applicable to the Pensionable Employees are continued during the Participation Period. 4.5 The Vendor shall procure that any Pensionable Employee who for any reason during the Participation Period becomes eligible for a benefit under either of the Vendor's Schemes (including for the avoidance of doubt, an early retirement pension on the terms set out in the relevant Vendor's Scheme) shall (subject to the consent of the Purchaser) be granted such benefit without further contribution being required of the Purchaser or of the Pensionable Employee, except where the amount of a benefit is augmented at the request or with the consent of the Purchaser, in which case the grant of such additional benefit under the relevant Vendor's Scheme shall be conditional on payment by the UK Purchaser to the trustees of the relevant Vendor's Scheme of such amount by way of additional contribution as shall be agreed between the Vendor's Actuary and the Purchaser's Actuary as being equal to the excess (if any) of the value (on the basis of the method and assumptions set out in the relevant Vendor's Letter) of the augmented benefit over the non-augmented benefit. 5 TRANSFER PAYMENTS 5.1 The Vendor and the Purchaser will each take steps within its competence to ensure that by such date that is no later than 45 days after the Pension Transfer Date each Pensionable Employee is given the opportunity of consenting in terms approved by 167 the trustees of the Vendor's Schemes (such approvals not to be unreasonably withheld or delayed) to a transfer of assets being made for him from the relevant Vendor's Scheme to the Purchaser's Scheme in accordance with the provisions of this Schedule. 5.2 The Purchaser undertakes to establish or nominate one or more retirement benefits schemes on or before the Pension Transfer Date. 5.3 Subject to receipt of the Transfer Amount, the Purchaser's Scheme shall provide in respect of each of the Transferring Employees (subject to Inland Revenue limits on benefits not being exceeded) benefits on a basis for service prior to the Pension Transfer Date which is in the opinion of the Purchaser's Actuary and agreed by the Vendor's Actuary no less favourable in value than the basis of the benefits for such service to which that Transferring Employee is entitled under the relevant Vendor's Scheme at the Completion Date provided that for the avoidance of doubt there shall be deemed to be no obligation to equalise benefits in the Vendor's Scheme or the Purchaser's Scheme arising as a result of Guaranteed Minimum Pensions. Any notional money purchase underpin applicable to additional voluntary contributions paid to purchase added years in the Vendor's Schemes which increases the Transfer Amount shall also be given value in the Purchaser's Scheme on the same basis as referred to above. 5.4 Immediately following the Pension Transfer Date, the Vendor's Actuary shall calculate the Transfer Value in respect of each of the Transferring Employees and shall pass the results of his calculations to the Purchaser's Actuary by such date which is three months after the Pension Transfer Date (or the date which is three months after the date of receipt of any data requested pursuant to paragraph 5.6, if later). 5.5 The Purchaser's Actuary will have two months from the date of his receipt of the results of the Vendor's Actuary's calculations (or the date which is two months after the date of receipt of any data requested pursuant to paragraph 5.6, if later) to agree the results of those calculations or to raise any objections he may have. Any such objections are to be notified in writing. 168 5.6 The Vendor and the Purchaser shall use their respective reasonable endeavours to procure that any information which the Vendor's Actuary or the Purchaser's Actuary may reasonably require in order to calculate and verify the Transfer Values shall be provided to the Vendor's Actuary or the Purchaser's Actuary (as appropriate) as soon as is reasonably practicable and that such information shall be true and complete in all material respects. 5.7 If no objections are raised by the Purchaser's Actuary pursuant to paragraph 5.5 the Transfer Values will be binding upon the parties. 5.8 If any objections are notified pursuant to paragraph 5.5 the parties are to instruct their respective Actuaries to negotiate with a view to resolving any differences between them. 5.9 If those differences remain unresolved at the end of thirty days after the objections have been notified pursuant to paragraph 5.5 either party may refer the matter to the Expert. The provisions of paragraph 6 will then apply in this matter. 5.10 The Vendor shall use its reasonable endeavours to procure that, on the Payment Date an amount in specie equal to the Transfer Amount consisting of 60% UK equity and 40% overseas equity investments (comprising 131/3 % in North America, 131/3% in Europe excluding the UK, 62/3% in Japan and 62/3% in the Pacific Basin excluding Japan) (but excluding interests in pooled funds which are not index-tracking funds) based on their mid-market values on the Business Day prior to the Payment Date shall be transferred by the Investment Managers on behalf of the trustees of the Vendor's Schemes to the trustees or managers of the Purchaser's Scheme. The equities transferred will be a reasonable cross section of those held by the Vendor's Schemes as agreed by the Vendor and the Purchaser (such agreement not to be unreasonably withheld or delayed). To the extent that such agreement is not reached, an amount in cash equal to the balance of the Transfer Amount subject to a realisation charge of 1/2% shall be transferred. 5.11 If on the Payment Date the aggregate amount transferred by the trustees of the Vendor's Schemes to the trustees or managers of the Purchaser's Scheme in relation 169 to the Transferring Employees is less than the Transfer Amount (the difference between such aggregate amount transferred and the Transfer Amount being the "Underpayment"), the Vendor shall forthwith pay to the Purchaser or as it may direct (by way of reduction of the purchase consideration) a cash amount equal to the Underpayment together with interest thereon at the rate of 2 per cent above the base rate from time to time of The Hong Kong and Shanghai Banking Corporation Limited in respect of the period from and including the Payment Date up to but excluding the date of actual payment under this paragraph 5.11. 5.12 As soon as reasonably practicable after receipt of the Underpayment, the Purchaser shall, or shall procure that the UK Purchaser will, pay into the Purchaser's Scheme an amount equal to the Underpayment. The Purchaser shall, promptly upon it and the UK Purchaser receiving any net tax benefit in respect of such payment, pay (or procure the payment of) to the Vendor (by way of increase of the purchase consideration) an amount equal to such net tax benefit (taking into account any tax liability of the Purchaser or the UK Purchaser on receipt of the Underpayment and any tax deduction in respect of the payment by the Purchaser or the UK Purchaser into the Purchaser's Scheme). 5.13 The Vendor will use its best endeavours to ensure that the appropriate funds in respect of additional voluntary contributions not paid to purchase added years attributable to the Transferring Employees is transferred to the Purchaser's Scheme on the Payment Date. 5.14 The funds transferred in accordance with paragraph 5.13 above shall be used for the exclusive benefit of those Transferring Employees who have made additional voluntary contributions as referred to in that paragraph. 6 Any dispute between the Vendor and the Purchaser or between the Vendor's Actuary and the Purchaser's Actuary concerning the matters referred to in this Schedule shall in the absence of agreement between them be referred to an independent actuary ("the Expert") appointed by the parties or to be appointed at the request of either party hereto by the President for the time being of the Institute of Actuaries if agreement as 170 to the independent actuary to act as the Expert cannot be reached. The person so appointed shall act as an expert and not as an arbitrator. The decisions of the Expert shall be final and binding on the parties hereto. The costs of the Expert shall be borne as the Expert shall direct. 7 The Purchaser shall procure that the UK Purchaser will authorise the Vendor to exercise all powers, rights and discretions conferred on the UK Purchaser under the Pensions Act 1995 by virtue of its participation in the Vendor's Schemes. In particular, the Purchaser shall procure that the UK Purchaser will: 7.1 nominate the Vendor as the "appropriate person" to act for each of them for the purposes of section 21(9) of the Pensions Act 1995 in relation to the Vendor's Schemes. 7.2 agree that: (a) the Vendor should act on their behalf for the purposes of section 58(4) of the Pensions Act 1995 in respect of the Vendor's Schemes; and (b) the Vendor will consult with the trustees of the Vendor's Schemes pursuant to section 35(5) of the Pensions Act 1995 in place of the UK Purchaser. 8 INDEMNITIES 8.1 The Vendor shall indemnify the Purchaser (for itself and as agent and trustee for the UK Purchaser, the employer of the employees concerned as referred to in (c) below and the Purchaser's Scheme) against all actions, proceedings, costs, claims, damages and expenses brought or made against or incurred by the Purchaser or the UK Purchaser, or the employer of the Employees concerned as referred to in (c) below or the Purchaser's Scheme (including, without limitation, any additional contributions payable to the Purchaser's Scheme) insofar as the same arise from: (a) the Purchaser or the UK Purchaser or the Purchaser's Scheme being required to provide benefits to any Employees in respect of the whole or part of their service prior to the Completion Date in excess of the benefits provided under paragraph 5.3 where such requirement arises by reference to the provisions of European Community law or 171 sections 62 to 66 of the Pensions Act 1995 relating to the equal access requirements or relating to the equal treatment requirements insofar as they apply to members of the BICC Group Senior Executive Fund who joined that Fund prior to 2 March 1987. For the avoidance of doubt this requirement shall not include the equalisation of guaranteed minimum pensions; (b) the Purchaser or the UK Purchaser being liable for any deficiency under the Vendor's Schemes pursuant to section 75 of the Pensions Act 1995 or otherwise howsoever in relation to the Vendor's Schemes (except for amounts payable by the Purchaser or the UK Purchaser pursuant to paragraphs 2 and 4.5 or except in so far as attributable to any act or omission of the Purchaser or the UK Purchaser); (c) the Purchaser or the UK Purchaser or the Purchaser's Scheme or the employer of the employees concerned being liable in relation to any participation prior to the Completion Date by ex-patriate employees in the Vendor's Schemes in contravention of Inland Revenue requirements (including, without limitation, Mr N Blackwell, ex-patriate employee based in Egypt, and Mr W Bailey, ex-patriate employee based in Dubai). The indemnity in sub-paragraph (c) is conditional on the Purchaser, the UK Purchaser and the Purchaser's Scheme and the employer of the employees concerned co-operating with the Vendor in minimising any such liability including in particular complying with any requirements or conditions that may be imposed by the Inland Revenue (whether as to the nature of the Purchaser's Scheme to which such benefits are transferred or otherwise). 8.2 The Vendor shall indemnify the Purchaser (for itself and as agent and trustee for the Relevant Purchaser of the Shares in BICC General Cable SA against all Losses suffered by the Purchaser or the Relevant Purchaser (including, without limitation, any additional payments required to be made to Sud America Vida y Pensiones, S.A. or Sudamericana Seguros) in so far as the same arise from the assets held at the Completion Date in respect of the policies issued by Sud America Vida y Pensiones, S.A. or Sudamericana Seguros in relation to employees of such Relevant Purchaser (including Saenger, S.A. and any other companies whose businesses have been merged with such Relevant Purchaser) being less than the liabilities at the Completion Date in relation to such employees (assessed on the same basis as the actuarial 172 valuation dated 1 January 1998) Provided that due account will be taken for this purpose of any allowance made in the Net Asset Statement in respect of any such underfunding. 173 SCHEDULE 13 PART 1 NON-LEASED PROPERTIES BRIEF DETAILS OF PROPERTY 1 Erith Works, Church Manorway, Erith, Kent 2 Wrexham Site (save for Wrexham II), Oak Road, Wrexham Trading Estate, Clwyd 3 Prescot Works, Hall Lane, Prescot, Lancashire 4 The Sports and Social Club off Warrington Road, Prescot, Lancashire 5 Leigh Works (save for the Brand Rex Premises), West Bridgewater Street, Leigh, Lancashire 6 Hebburn Works, Hedgeley Road, Hebburn, Durham 7 Daybrook Square, Mansfield Road, Nottingham 174 SCHEDULE 13 PART 2 LEASED PROPERTIES Address of Property: Suite 3, RVB House, Llys Felin Newydd, Phoenix Way, Enterprise Park, Swansea Parties: RVB Investment Limited (1) and BICC Components Limited (2) Current tenant and guarantor: BICC Components Limited. No guarantor. Term (including options to break and renew): 3 years commencing on 14 December 1998, Tenant's only option to break on each anniversary of lease on giving 3 months prior notice to Landlord. Current rent and rent review dates: (pound)9,645 per annum. No rent review. 175 SCHEDULE 13 PART 3 LIST OF OVERSEAS PROPERTIES
- --------------------------------------------------------------------------------------------------- OWNER PROPERTY TENURE - --------------------------------------------------------------------------------------------------- ITALY: BICC Ceat Cavi srl Energy Cables Division, Via Piceno Freehold Aprutina 55/B, 63100 Ascoli Piceno, Italy BICC Ceat Cavi srl Via Brescia 16, 10036 Settimo Torinese, Freehold Turin, Italy - --------------------------------------------------------------------------------------------------- SPAIN: BICC General Cable SA Carretera de Ribas Km 13,2, Montcada i Freehold Reixach (Barna), Spain BICC General Cable SA c/Rusinol 63, Manlleu (Barna), Spain Freehold BICC General Cable SA Ctra Martorell a Olesa Km 4,3, Arbrera, Freehold Spain BICC General Cable SA Casanova 150, Barcelona, Spain Freehold BICC General Cable SA Partida, Castello, Teulada (Alicante), Freehold Spain BICC General Cable SA Avda Garcia de Najera 4, Pamplona Leasehold (Navarra), Spain BICC General Cable SA Ctra Nacional IV, Edificio Eurosevilla, Leasehold Sevilla, Spain BICC General Cable SA Juan de Ajuriaguerra 26, Bilbao, Spain Leasehold BICC General Cable SA Cirilo Amoros 27, Valencia, Spain Leasehold BICC General Cable SA Rusinol 57, Manlleu (Barna), Spain Leasehold - --------------------------------------------------------------------------------------------------- NORWAY: BICC Norspa A/S Berghahan 5, Langhus 1401 Ski, Norway Leasehold - --------------------------------------------------------------------------------------------------- BRAZIL: BICC Novacoes Ltda Avda Paulo Miguel Bohomoletz, 12 Civi-1, Leasehold Serra Espirito Santo, Brazil - --------------------------------------------------------------------------------------------------- PORTUGAL: BICC Celcat Cabos de Energia e Av Marques de Pombal 36/38, Morelena, Freehold Telecommunicaciones SA 2715 Pero Pinheiro, Portugal BICC Cabos de Energia e Porto Branch, Rua Goncaio Cristovao Leasehold Telecommunicaciones SA 312-4 BeC, 4000 Porto, Portugal - ---------------------------------------------------------------------------------------------------
176
- --------------------------------------------------------------------------------------------------- OWNER PROPERTY TENURE - --------------------------------------------------------------------------------------------------- MOZAMBIQUE: Celmoque Cabos de Energia e Av Zedequias Mangalhela 1430, Maputo, Leasehold Telecommunicaciones SA Mozambique Celmoque Cabos de Energia e (Head Office), Estrada Nacional No6 Alto Installations Telecommunicaciones SA da Manga, Beira-Provincia da Sofala, Owned Mozambique Land Nationalised - --------------------------------------------------------------------------------------------------- ANGOLA: Condel Fabrica de Contudores Cazenga 5a Avenida, Luanda, Angola Freehold Electrizos de Angola SARL Condel Fabrica de Contudores Av Rainha Ginga 147-6o Luanda, Angola Leasehold Electrizos de Angola SARL - --------------------------------------------------------------------------------------------------- DUBAI: Dubai Cable Company (Private) Ltd. PO Box 11529, Dubai, United Arab Emirates Land allocated by State Dubai Cable Company (Private) Ltd. Dubai City and Distribution sites in Abu Leasehold Dhabi, Bahrain and Oatar - --------------------------------------------------------------------------------------------------- EGYPT: BICC Egypt SAE Abou Rawash Industrial Zone, Giza, Freehold Cairo, Egypt BICC Egypt SAE 33 Ahmed Hishmet Street, Zamalek, Cairo, Leasehold Egypt - --------------------------------------------------------------------------------------------------- ZIMBABWE: BICC CAFCA Limited PO Box 1651 Lytton Road, Workington, Freehold Harare, Zimbabwe - --------------------------------------------------------------------------------------------------- CHINA: BICC Cables Asia-Pacific Pte Ltd. Shanghai Rep Office, 1104/05 Hong Kong Leasehold Plaza, 263 Huai Hei Middle Road, Shanghai 200021, Peoples Republic of China BICC Cables Asia-Pacific Pte Ltd. Beijing Rep Office, Unit 12 10/F, Jingan Leasehold Centre, 8 East Road, Northern 3 Ring Road, Chao Yang District, Beijing, Peoples Republic of China - --------------------------------------------------------------------------------------------------- TAIWAN: BICC Energy Cables Pte Ltd. Taiwan Rep Office, Room 23 21/F, 50 Leasehold Chung Hsalo West Road, Taipei, Taiwan - --------------------------------------------------------------------------------------------------- NEW ZEALAND: BICC Cables New Zealand Ltd. Riccarton Factory, 73/89 Main South Freehold Road, Riccarton, Christchurch, New Zealand - ---------------------------------------------------------------------------------------------------
177
- --------------------------------------------------------------------------------------------------- OWNER PROPERTY TENURE - --------------------------------------------------------------------------------------------------- BICC Cables New Zealand Ltd. Auckland Service Centre, 14-18 Vestey Leasehold Drive, Mt. Wellington, Auckland, New Zealand BICC Cables New Zealand Ltd. Wellington Service Centre, 43 Barnes Leasehold Street, Wellington, New Zealand BICC Cables New Zealand Ltd. Wellington Warehouse, 67 Port Road, Leasehold Petone, Wellington, New Zealand - --------------------------------------------------------------------------------------------------- FIJI: Dominion Wine and Cables Ltd. Ba factory, Lot 3 Kings Road, Nailaga, Freehold BA, Fiji Island - --------------------------------------------------------------------------------------------------- SINGAPORE: BICC Energy Cables Pte Ltd. Wisma Atria Office, 435 Orchard Road, Leasehold #17-02 Wisma Atria, Singapore 238877 BICC Energy Cables Pte Ltd. Pasir Panjang, Pasir Panjang Distrpark, Leasehold Pasir Panjang Road, Singapore 118500 Trans-Power Cables Pte Limited Trans-Power Cables Pte Ltd, Units Leasehold #01-01, 01-02, 01-04, Pasir Panjang Building, 15 West Coast Highway, Singapore 117861 Trans-Power Cables Pte Limited Trans-Power Cables Pte Ltd, Unit 16, Leasehold Pasir Panjang Distrpark, West Coast Highway, Singapore BICC Cables Asia-Pacific Pte Ltd. Wisma Atria Regional Office, 435 Orchard Leasehold Road, #21-01/02/03 Wisma Atria, Singapore 238877 - --------------------------------------------------------------------------------------------------- MALAYSIA: BICC Energy Cables Pte Ltd 42 Jalan Molek 2/1 Leasehold Taman Molek, 81100 Johor Bahru, Maylasia Power Cables Malaysia Sdn Bhd Shah Alam factory, Lot 2, Jalan Kawal Leasehold 15/18, 40702 Shah Alam, Selangor, Malaysia Power Cables Malaysia Sdn Bhd Bukit Raja aluminium rod plant, Lots 31 Freehold and 32, Bukit Raja Industrial Park, Klang, Selangor, Malaysia - --------------------------------------------------------------------------------------------------- INDONESIA: PT BICC Berca Cables Balaraja factory, Blok F1 3/4, Jalan Freehold Raya Serang Km28.5, Balaraja-Tangerang, West Java, Republic of Indonesia - ---------------------------------------------------------------------------------------------------
178
- --------------------------------------------------------------------------------------------------- OWNER PROPERTY TENURE - --------------------------------------------------------------------------------------------------- HONG KONG: BICC Cables China Ltd. Great Eagle Centre, Room 1011, Great Leasehold Eagle Centre, Wanchai, Hong Kong BICC Cables China Ltd. Chai Wan warehouse, Unit 44, 7/F Chai Leasehold Wan Industrial City, 70 Wing Tai Road, Chai Wan, Hong Kong - --------------------------------------------------------------------------------------------------- ARGENTINA: BICC Cables Argentina SA J M Campos No 1255, Villa Zagala, Leasehold Partida de San Martin, Provincia de Buenos Aires, Argentina - --------------------------------------------------------------------------------------------------- THAILAND: BICC Energy Cables Pte Ltd. Thailand Rep Office, Unit 1701, One Leasehold Pacific Place, 140 Sukumvit Road, Klongtoay, Bangkok 10110, Thailand - ---------------------------------------------------------------------------------------------------
179 SCHEDULE 14 The provisions of this Schedule 14 apply only to those Properties located in England or Wales PART 1 TERMS OF SALE OF THE BUSINESS SELLERS' PROPERTIES IN ENGLAND AND WALES 1 Insofar as the same are applicable and are not consistent with or varied by the express terms of this Agreement, this Agreement shall incorporate the Standard Conditions of Sale (Third Edition) ("Conditions") as varied in the manner set out below which shall apply in respect of Properties in England and Wales. 1.1 In paragraphs (a) and (b) of Condition 1.3.6 the words "unless returned undelivered" shall be added after the word "posting". 1.2 Paragraph (c) of Condition 3.1.2 shall be amended to read "those of which the seller does not have actual knowledge" and the following paragraph (f) shall be added to the Condition: "(f) all other matters disclosed or reasonably to be expected to be disclosed by searches and as a result of enquiries made by or for the buyer or which a prudent buyer ought to make". 1.3 In Condition 3.1.3 the words "of which he receives actual knowledge" shall be inserted after the words "new public requirement" and shall also be substituted for the words "which he learns about". 1.4 Condition 4.3.2 shall not apply. 1.5 Conditions 5.1.1 and 5.1.2 shall not apply and the risk of damage to or destruction of the Business Seller's Properties passes to the Purchaser from the date of this Agreement save that the Vendor shall continue to insure the Business Seller's Properties (other than the Business Sellers' Leased Property) on the current terms (so far as it is able) and in the event of any damage or destruction of them the Vendor will pay the insurance proceeds received by it to the Purchaser and if any insurance money shall be irrecoverable due to any act or neglect of the Vendor or any Business 180 Seller or any of their respective undertenants, employees, servants, agents, licencees or mortgagees, then the Vendor shall pay to the Purchaser the irrecoverable amount. Condition 5.1.3 shall not apply. 1.6 In the case of the Business Seller's Leased Properties the following proviso shall be added at the end of Condition 6.6: "PROVIDED that the production of such receipt shall not be a condition of completion but if the seller is unable to produce the same then the seller shall furnish such other evidence (if any) as may be available in respect thereof" and in paragraph (a) of Condition 8.3.2 the words "but the seller shall not be obliged to pay a premium for such consent" shall be added after the words "obtain it" and Condition 8.3.4 shall not apply. 2 BUSINESS SELLERS' LEASED PROPERTIES 2.1 The Vendor shall procure that the relevant Business Seller shall: 2.1.1 apply at its own expense for consent to assign any Business Sellers' Leased Property; and 2.1.2 use all reasonable endeavours to obtain such consent; and 2.1.3 keep the Purchaser fully informed of all progress made with regard to the obtaining of such consent. 2.2 The Purchaser shall in connection with obtaining the consent referred to in paragraph 2.1.1 above: 2.2.1 provide all information and references reasonably required by the landlord; 2.2.2 enter into direct covenants and provide such other security as required under the relevant lease or as the landlord may otherwise reasonably require. 2.3 In the event that any necessary consent to assign any Business Sellers' Leased Property has not been obtained by the Completion Date then the following provisions shall apply: 181 2.3.1 completion of the transfer of the relevant Business Seller's Leased Property shall be deferred until three Business Days after such consent has been obtained and a copy provided to the Purchaser; 2.3.2 during the period from Completion until the date of actual completion of the transfer of the relevant Business Seller's Leased Property (the INTERIM PERIOD) the Vendor shall procure that the relevant Business Seller shall: (i) hold the relevant Business Seller's Leased Property on trust for the Purchaser; and (ii) permit the Purchaser to occupy the relevant Business Seller's Leased Property as licensee for the purposes for which it has been used by the relevant Business Seller prior to the date hereof; and (iii) not without the prior consent of the Purchaser surrender or sell or vary or agree any revised rent for any Lease or agree to do any of the same. 2.4 During the Interim Period the Purchaser shall: 2.4.1 within five Business Days of written demand put the Vendor in funds so as to enable the relevant Business Seller to pay all rents, service charges and other outgoings and expenses payable in respect of the relevant Business Seller's Leased Property and which relate to the Interim Period; 2.4.2 save insofar as the same are the express responsibility of the Vendor under this Agreement, observe and perform the covenants and conditions on the part of the lessee contained in the Lease or otherwise affecting the relevant Business Seller's Leased Property; 2.4.3 not without the Vendor's prior written consent, erect or affix on the relevant Business Seller's Leased Property any signs or other notifications that the relevant Business Seller's Leased Property is no longer occupied by the relevant Business Seller; and 182 2.4.4 indemnify the Vendor and the relevant Business Seller against the acts and omissions of the employees servants agents and invitees of the Purchaser in or about the relevant Business Seller's Leased Property occurring on or after Completion. 2.5 If such consent has not been obtained to assign the relevant Business Seller's Leased Property within six months after Completion then either party may (provided it has complied substantially with its obligations under paragraph 2) at any time before such consent has been obtained exclude the relevant Business Seller's Leased Property from the sale and purchase pursuant to this Agreement by notice in writing to the other party in which case neither party is to be treated as in breach of contract. 3 THE BUSINESS SELLERS' PROPERTIES 3.1 The Business Sellers' Properties are sold together with all easements, rights and licences attaching or appurtenant thereto and all buildings, structures and fixed and non-severable plant, machinery and equipment thereon except: 3.1.1 property belonging to the suppliers of gas, water, electricity, telecommunications or other services; and 3.1.2 landlord's fixtures and fittings on any of the Business Sellers' Leased Properties; and 3.1.3 tenant's and trade fixtures and fittings on any part of any Business Seller's Property that is subject to any lease or tenancy in favour of a third party; but subject to the easements, rights, rent charges, covenants, restrictions, leases, tenancies (including statutory tenancies), licences, agreements, overriding interests (as defined in Section 70(1) of the Land Registration Act 1925) or matters which would be overriding interests if the title to the Business Sellers' Property were registered and other matters affecting the same at the date of this Agreement and as regards the Business Sellers' Properties mentioned in Part 3 of this Schedule 14, the special conditions respectively expressed therein to apply to them and the Business Sellers' Leased Properties are sold subject also to the rents, covenants and 183 conditions reserved by or contained in the leases under which the same are respectively held. The Purchaser shall raise no requisitions nor make any objection in respect of any of the above, save as may arise as a result of the Purchaser's pre-completion searches. 3.2 The transfer of any Business Seller's Property (other than the Business Sellers' Leased Property) to the Purchaser shall include the following declaration: "This Transfer is made with full title guarantee but the covenant set out in Section 3(1) of the Law of Property (Miscellaneous Provisions) Act 1994 (the "1994 ACT") does not extend to any charge (other than any financial charge or mortgage), encumbrance or other right of which the Transferor is unaware (whether or not the Transferor could reasonably be expected to be aware of it) or which was created or imposed after [the date of this Agreement] (other than by the Transferor)". 3.3 In the assignment of any Business Seller's Leased Property to the Purchaser: 3.3.1 There shall be the following declaration: "This Assignment is made with the full title guarantee but: (i) the covenant set out in section 3(1) of the Law of Property (Miscellaneous Provisions) Act 1994 (the "1994 ACT") does not extend to any charge (other than any financial charge or mortgage), encumbrance or other right of which the Assignor is unaware (whether or not the Assignor could reasonably be expected to be aware of it) or which was created or imposed after [the date of this Agreement] (other than by the Assignor); and (ii) the Assignor shall not be liable under any of the implied covenants set out in Section 3 or Section 4 of the 1994 Act for the consequences of any breach of the lessee's covenants contained in or other terms of the Lease relating to the state or condition of the Property. 3.3.2 The Purchaser (as the assignee) will covenant with the relevant Business Seller (as the assignor) as follows: 184 "The Assignee hereby covenants with the Assignor that the Assignee and the Assignee's successors in title will henceforth during the continuance of the term of the Lease pay the rents reserved thereby and observe and perform the lessee's covenants and the conditions contained therein and will indemnify the Assignor and the successors in title of the Assignor from and against all actions, proceedings, costs, claims, expenses and liability for or on account of (i) any future breach, non-observance or non-performance thereof and (ii) any past or existing breach, non-observance or non-performance of any covenants concerning the state or condition of the Property" 3.4 The Purchaser shall raise no objection if any lease or tenancy agreement of any Business Seller's Leased Property shall be found to be an underlease or sub-tenancy or if the covenants in any such lease or tenancy agreement do not correspond with the covenants in any superior lease or tenancy. 3.5 The Purchaser is deemed to buy with knowledge in all respects of the authorised uses of the Business Seller's Properties for the purposes of the enactments from time to time in force relating to town and country planning. 3.6 Upon actual completion of the sale and purchase of the Business Seller's Properties vacant possession will be given with the exception of the premises comprised in the Erith Lease, the Prescot Leases, the Prescot Social Club Leases, the Nottingham Leases and the Wrexham Leases (all as defined in the Special Conditons of Sale and any electricity substations on any Business Seller's Property. 3.7 In respect of those Business Sellers' Properties listed at paragraph 6 ("Hebburn"), paragraph 7 ("Nottingham") and paragraph 8 ("Swansea") of Part 2 of Schedule 14, the Vendor shall procure that Pyrotenax Limited in the case of Hebburn, Fine Wires Limited in the case of the part of Nottingham owned by it, and BICC Compontents Limited in the case of Swansea, shall each transfer their respective legal interests in those Business Sellers' Properties to the Purchaser with full title guarantee. 3.8 Save as provided in paragraph 3.7 above or in the Special Conditions of Sale, the Vendor shall transfer or convey the Business Sellers' Properties with full title 185 guarantee and in respect of Hebburn, Nottingham and Swansea the Vendor shall transfer or convey to the Purchaser the Vendor's beneficial interests therein with full title guarantee. 3.9 In respect of those Business Sellers' Properties listed at paragraph 2 ("Wrexham") and paragraph 5 ("Leigh") of Part 2 of Schedule 14, the provisions of Annexure 2 and 3 (relating to works to be undertaken to separate properties shall apply. 3.10 The Vendor and Purchaser shall not later than 15 working days after completion of the works referred to in Annexures 2 and 3 enter into a deed (or deeds) in a form to be agreed between the Vendor and Purchaser (each acting reasonably) granting and reserving (save where the rights are expressed to be temporary only) the rights set out or referred to in Annexures 2 and 3. 3.11 The Vendor and the Purchaser shall act in good faith in the best interests of a successful completion of the separation of Wrexham and Leigh from the land retained by the Vendor and: 3.11.1 the Vendor and the Purchaser shall, and shall use all reasonable endeavours to procure that any third party shall, do and execute all other acts, deeds, documents and things as may be necessary for giving effect to the provisions of Annexures 2 and 3; and 3.11.2 if the rights and agreements referred to in Annexures 2 and 3 are inadequate or insufficient to enable such separation the Vendor and the Purchaser shall, and shall use all reasonable endeavours to procure that any third party shall, enter into such deeds or agreements to rectify such inadequacy or insufficiency granting or reserving as applicable such easements and rights as shall be reasonably necessary for the separation and subsequent use and enjoyment of Wrexham and Leigh and the land retained by the Vendor. 3.12 Any dispute between the Vendor and the Purchaser as to their respective rights, duties and obligations in respect of the separation of Wrexham and Leigh from the land retained by the Vendor shall, if required, be referred to an independent expert (acting as an expert and not as an arbitrator) to be agreed upon by the Vendor and 186 the Purchaser or if they fail to agree to be nominated by the President or next most senior available officer of the Royal Institution of Chartered Surveyors on the application of either party. The decision of the expert (whether of fact or law) shall be final and binding on the parties and shall be given without reasons. Any dispute or question relating to the independent expert's terms of reference, whether of fact or law, shall be in the exclusive jurisdiction of the independent expert. The independent's expert's fees and expenses shall be paid by the Vendor and the Purchaser in equal shares. 3.13 On Completion the Vendor shall pay to the Purcdhaser 50 per cent of the stamp duty payable on the respective transfers of the Business Sellers' Properties in England and Wales. 187 SCHEDULE 14 PART 2 - BUSINESS SELLERS' PROPERTIES BUSINESS SELLERS' NON-LEASED PROPERTIES 1 Erith Works, Church Manorway, Erith, Kent as the same are shown for the purposes of identification only edged red on the plan annexed hereto and numbered 1 (ERITH) 2 Wrexham Site, Oak Road, Wrexham Trading Estate, Clywd as the same is shown for the purposes of identification only edged red on the plan annexed hereto and numbered 2 (WREXHAM) (except for that part of Wrexham shown for the purpose of identification only edged green on plan 2 annexed and known as WREXHAM II) 3 Prescot Works, Hall Lane, Prescot, Lancashire as the same is shown for the purposes of identification only edged red (save for the land shown for the purposes of identification only edged blue on plan 3 annexed) on the plan annexed hereto and numbered 3 (PRESCOT) 4 The Sports and Social Club off Warrington Road, Prescot, Lancashire as the same is shown for the purposes of identification only edged red on the plan annexed hereto and numbered 4 (PRESCOT SOCIAL CLUB) 5 Leigh Works, West Bridgewater Street, Leigh, Lancashire as the same are shown for the purposes of identification only edged red on the plan annexed hereto and numbered 5 (LEIGH) (except for that part of Leigh shown for the purposes of identification only edged green on plan 5 annexed and known as the BRAND REX PREMISES) 6 Hebburn Works, Hedgeley Road, Hebburn, Durham as the same are shown for the purposes of identification only edged red on the plans annexed hereto and numbered 6 (HEBBURN) 7 Daybrook Square, Mansfield Road, Nottingham registered at H.M. Land Registry under the numbers NT289090, NT98172, NT78063, NT72820, NT64705, NT59845, NT66997, NT65304, NT96593, NT80206 and NT72827 (NOTTINGHAM). 188 BUSINESS SELLERS' LEASED PROPERTIES 8 Suite 3, RVB House, Llys Felin Newydd, Phoenix Way, Enterprise Park, Swansea ("SWANSEA") as the same is more fully described in and demised by a lease dated 14 December 1998 made between RVB Investments Limited (1) and BICC Components Limited (2) (the "SWANSEA LEASE"). 189 SCHEDULE 14 PART 3 SPECIAL CONDITIONS RELATING TO THE BUSINESS SELLERS' PROPERTIES SPECIAL CONDITIONS - ERITH 1 The title to Erith will commence with: 1.1 as to part a Conveyance dated 17 January 1902 and made between Frances Maria Dashwood & George Ashdown Hubbard (1) and Callenders Cable & Construction Company Limited (2) 1.2 as to part a Conveyance dated 29 February 1952 and made between Maypole Estates Limited (1) Lever Brothers & Unilever Limited (2) The British Oil and Cake Mills Limited (3) and British Insulated Callender's Cables Limited (4) 1.3 as to part a Deed of Exchange dated 21 July 1924 and made between Erith Oil Works Limited (1) and Callender's Cable & Construction Company Limited (2) 1.4 as to part a Conveyance dated 31 January 1898 and made between Messrs F Parish & F Hickson (1) and Callenders Cable & Construction Company Limited (2) 1.5 as to part a Conveyance dated 21 November 1924 and made between E G Dixon (1) Callender's Cable & Construction Company Limited (2) 1.6 as to part a Conveyance dated 20 September 1917 and made between E G Dixon & A W Stone (1) and Callender's Cable & Construction Company Limited (2) 1.7 as to part a Conveyance dated 2 December 1995 made between Unilever Limited (1) and British Insulated Callender's Cables Limited (2) 1 Copies of the title documents having been produced to the Purchaser's Lawyers prior to the date of this Agreement the Purchaser shall neither make nor raise any objection or requisition regarding the title to Erith save for any matter which arises as a result of the Purchaser's pre-completion seaches. 2 In the transfer of Erith the Purchaser (as the Transferee) will covenant with the Vendor (as Transferor) as follows: 190 "1. The Transferee with the object and intention of affording to the Transferor a full and sufficient indemnity but not further or otherwise hereby covenants with the Transferor that the Transferee and the persons deriving title under the Transferee will at all times hereafter observe and perform all covenants restrictions stipulations agreements and conditions contained or referred to in the documents set out below so far as they relate to Erith and are subsisting and capable of being enforced and taking effect and will keep the Transferor and the successors in title of the Transferor indemnified from and against all costs, claims, actions, proceedings, expenses and liability whatsoever for or on account of any breach, non-observance or non-performance thereof so far as aforesaid Conveyance dated 4 August 1971 and made between British Insulated Callenders Cables Limited (1) and Charrington Gardner Locket (London) Limited (2) Transfer dated 13 January 1972 made between British Callenders Cables Limited (1) and Pioneer Concrete (Holdings) Limited (2) Conveyance dated 9 July 1982 and made between BICC Public Limited Company (1) and James McNaughton Paper Group Limited (2) Copy Letter dated 4 November 1983 from BICC plc to London Borough of Bexley Transfer dated 4 March 1988 made between BICC Public Limited Company (1) and Western Motor Works Chislehurst Limited (2) Deed of Covenants dated 10 May 1902 and made between Callenders Cable & Construction Company Limited and (1) The British Firelighter Company Limited (2) Agreement dated 16 May 1903 and made between The Commissioners of Sewers (1) and Callenders Cable & Construction Company Limited (2) Agreement dated 19 July 1905 and made between The Commissioners of Sewers (1) and Callender's Cable & Construction Company Limited (2) Agreement dated 24 September 1923 and made between The Erith Urban District Council (1) and Callender's Cable & Construction Company Limited (2) Agreement dated 13 December 1928 and made between The Commissioners of Sewers (1) and Callenders Cable and Construction Company Limited (2) Agreement dated 27 July 1942 and made between Kent Rivers Catchment Board (1) and Callender's Cable & Construction Company Limited (2) Conveyance dated 20 December 1946 and made between Callenders Cable & Construction Company Limited (in liquidation) (1) Harold Hockley (2) and British Insulated Callender's Cables Limited (3) Conveyance dated 16 September 1958 and made between British Insulated Callender's Cables Limited (1) and Kent River Board (2) Letter dated 8 December 1978 from London Electricity to British Insulated Cables Limited 191 Deed of Easement dated 21 October 1986 made between BICC plc (1) and Thames Water Authority (2) Agreement dated 11 January 1963 made between Kent River Board (1) and BICC Limited (2) Conveyance dated 2 December 1913 made between Sir James Whitehead (1) Erith Oil Works, Limited (2) Licence dated 22 May 1973 and made between Unilever Limited (1) and British Insulated Callender's Cables Limited (2)" "2. The Transferee hereby covenants with the Transferor that the Transferee and the Transferee's successors in title will henceforth during the continuance of the term of the lease ("the Erith Lease") dated 8 July 1971 made between British Insulated Callender's Cables Limited (1) and the Mayor Aldermen and Burgesses of the London Borough of Bexley (2) observe and perform the landlord's obligations contained in or arising under the Erith Lease and will indemnify the Transferor and the successors in title of the Transferor from and against all actions, proceedings, costs, claims, expenses and liability in respect of the same" 3 The Vendor is unable to locate any title documents to the land coloured green and coloured blue hatched black on the plan annexed hereto and marked "ESC" and the Purchaser shall raise no requisition nor make any objection with regard thereto. The Vendor will hand over to the Purchaser on completion the Statutory Declaration made by Martin John Pink on 9 February 1999 relating to the Vendor's title to such land 4 In respect of those parts of Erith title to which is registered at HM Land Registry under title numbers SGL162761 and SGL579129 the registered proprietor of the land within each title is Balfour Beatty Limited. By a transfer dated 15th February 1999 Balfour Beatty Limited transferred the land within title numbers SGL162761 and SGL 579129 to the Vendor (the "TRANSFER"). In respect of the Transfer the Vendor shall: (a) procure that the Transfer is presented forthwith to the Inland Revenue and properly stamped either with ad valorem duty or marked to indicate the Transfer is exempt from such duty; and (b) forthwith following satisfaction of the obligation set out in paragraph 5(a) above deliver the Transfer to Croydon District Land Registry (Ref. SGL162761/D/222) and advise the Purchaser's Lawyers accordingly; 192 (c) promptly and fully satisfy all requisitions raised by HM Land Registry in connection with the registration of the Transfer at HM Land Registry and copy all correspondence relating thereto to the Purchaser's Lawyers. 5 (a) As soon as reasonably practicable after Completion the Vendor will give notice to terminate an agreement dated 9th July 1982 between BICC Public Limited Company (1) and James McNaughton Paper Group Limited (2) ("the McNaughton Agreement") in accordance with the provisions thereof and the Vendor will provide to the Purchaser a copy of such notice. (b) As from the Completion Date the Purchaser will perform all the obligations on the part of the Vendor contained in the McNaughton Agreement until the McNaughton Agreement terminates and will fully and effectively indemnify and at all times keep the Vendor indemnified against all claims demands actions costs expenses and liabilities under the McNaughton Agreement in respect of the period commencing on the Completion Date. (c) The Vendor will demand all sums properly receivable for the services provided under the McNaughton Agreement until the McNaughton Agreement terminates and the Vendor will upon receipt pay such sums to the Purchaser. (d) If James McNaughton Paper Group Limited default in paying any sums owing under the McNaughton Agreement to the Vendor, the Vendor will take all reasonable steps to enforce the payment obligation of James McNaughton Paper Group Limited at the cost of the Vendor. 193 BUSINESS SELLERS' SPECIAL CONDITION PROPERTY AFFECTED PRESCOT 1. As to the unregistered freehold land title will commence with: as to part an Indenture made the 16 September 1925 between Robina Hughes (1) and The British Insulated and Helsby Cables Limited (2) as to part an Indenture made the 31 December 1924 between Ottiwell Ward and his mortgagee (1) and British Insulated Cables Limited (2) as to part a Conveyance made 27 November 1928 between Catherine Kerfoot (1) and British Insulated Cables Limited (2) as to part a Conveyance made the 1st August 1935 between William Francis Reakes (1) and British Insulated Cables Limited (2) as to part a Conveyance made 30 January 1942 between Messrs W A Cross and W Coombes (1) and British Insulated Callender's Cables Limited (2) as to part a Conveyance made 30 January 1942 between Charles Wood (1) William Caldwell (1) and British Insulated Cables Limited (3) as to part a Conveyance made 30 January 1942 between Elizabeth Jane Humphreys-Jones and others (1) Walter Coombs (2) and British Insulated Cables Limited (3) as to part a Conveyance made the 22 March 1974 between Prescot Urban District Council (1) and British Insulated Callender's Cables Limited (2) 194 BUSINESS SELLERS' SPECIAL CONDITION PROPERTY AFFECTED as to part a Conveyance made the 22 March 1974 between Prescot Urban District Council (1) and British Insulated Callender's Cables Limited (2) as to part a Deed of Exchange made 20 January 1944 between the Prescot Urban District Council (1) and British Insulated Cables Limited (2) as to part a Conveyance made 18 October 1943 between Charles Wood (1) and British Insulated Cables Limited (2) as to the remainder ("the Green Land") a Statutory Declaration dated 25 March 1971 by Emlyn Dickin 2. Title to the freehold land comprised in title number MS85907 will be deduced in accordance with Section 110 of the Land Registration Act 1925 3. The Vendor is unable to locate any title documents to the Green Land other than the Statutory Declaration of Emlyn Dickin referred to above and the Purchaser shall raise no requisition nor make any objection with regard thereto. The Vendor will hand over to the Purchaser on completion Statutory Declaration in agreed terms made by Victor Harold Bellard on 31 March 1999 relating to the Vendor's title to the Green Land and to the boundaries of the whole of Prescot. 4. As respects the Green Land the Vendor agrees to transfer its estate right and interest in the Green Land and shall be expressed to transfer the same with no title guarantee. 5. Copies of the title documents (save as mentioned in paragraph 3 above) having been produced to the Purchaser's Lawyers prior to the date of this Agreement the Purchaser shall neither make nor raise any objection or requisition regarding title to Prescot save for any matter which arises as a result of the Purchaser's pre-completion searches. 6. In the transfer of Prescot the Purchaser (as the Transferee) shall enter into the following covenants with the Vendor (as the Transferor): "The Transferee with the object and intention of affording to the 195 BUSINESS SELLERS' SPECIAL CONDITION PROPERTY AFFECTED Transferor a full and sufficient indemnity but not further or otherwise HEREBY COVENANTS with the Transferor that the Transferee and the persons deriving title under the Transferee will at all times hereafter observe and perform the covenants, restrictions, stipulations, agreements and conditions contained or referred to in the documents set out below so far as they relate to [Prescot] and are subsisting and capable of being enforced and taking effect and will keep the Transferor and the successors in title of the Transferor indemnified from and against all costs, claims, actions, proceedings, expenses and liability whatsoever for or on account of any breach, non-observance or non-performance thereof: Agreement made 10 September 1942 between the Prescot Urban District Council (1) and British Insulated Cables Limited (2); Deed of Grant made 3 August 1972 between British Insulated Callender's Cables Limited (1) and The Lord Mayor Aldermen and Citizens of the City of Liverpool (2); Agreement made 1 April 1998 between Richwalk Properties Limited (1) and the Vendor (2); Services Agreement made 1 April 1998 between Richwalk Properties Limited (1) and the Vendor (2)" 7. Prescot is sold subject to and with the benefit of the tenancies and licences ("the Prescot Leases") short particulars of which are set out below: 09.06.1989 The Vendor(1) 75 years from The Merseyside 09.06.1989 and North Wales Electricity Board (2) [23.11.1989] The Vendor(1) British Gas (2) 02.01.1997 BICC Cables 12 months from Limited (1) 1 January 1997 MVM Construction 196 BUSINESS SELLERS' SPECIAL CONDITION PROPERTY AFFECTED and Building Services (2) and in the transfer of Prescot the Purchaser (as the Transferee) will covenant with the Vendor (as the Transferor) as follows: "The Transferee HEREBY COVENANTS with the Transferor that the Transferee and the Transferee's successors in title will henceforth during the continuance of the terms of [the Prescot Leases] observe and perform the landlord's obligations contained in or otherwise arising under [the Prescot Leases] and will indemnify the Transferor and the successors in title of the Transferor from and against all actions, proceedings, costs, claims, expenses and liability in respect of the same" 8. On or before Completion the Vendor will procure the surrender by BICC Rod & Wire Limited ("R&WL") of the lease (the "LEASE") by operation of law of part of Prescot dated 6th January 1981 made between (1) the Vendor and (2) R&WL (then known as Prescot Rod Rollers Limited) (as the same is registered at HM Land Registry under title number MS151817) and at Completion will deliver to the Purchaser: (a) The orginal Lease and any documents made supplemental thereto; (b) A properly completed and dated deed of release executed by R&WL containing a release of the lessor under the terms of the Lease from its covenants and obligations contained in the Lease; (c) The land certificate relating to title MS151817; (d) Vacant possession of the premises which are the subject of the Lease 9. At Completion the Vendor will enter into a deed of assignment in such form as the parties shall agree with the Purchaser pursuant to which it will assign to the Purchaser the benefit of an agreement dated 1st April 1998 between (1) Richwalk Properties Limited and (2) the Vendor and which creates a right of pre-emption over land adjoining Prescot in favour of the Vendor. 10. The Vendor is unable to locate the lease which is believed to be dated 23rd November 1989 and made between the Vendor (1) and British Gas (2) and the Purchaser shall raise no requisition 197 BUSINESS SELLERS' SPECIAL CONDITION PROPERTY AFFECTED nor make any objection with regard thereto. PRESCOT SOCIAL CLUB 1. As to the unregistered freehold land title will commence with: as to part an Indenture made 12th July 1916 between Prescot & Helsby Estates Limited (1) and The British Insulated and Helsby Cables Limited (2) as to the remainder an Indenture made 16th June 1927 between Prescot and Helsby Estates Limited (1) and The British Insulated Cables Limited (2) 2. Copies of the title documents having been produced to the Purchaser's Lawyers prior to the date of this Agreement the Purchaser shall neither make nor raise any objection or requisition regarding title to Prescot Social Club save for any matter which arises as a result of the Purchaser's pre-completion searches. 3. In the transfer of the Prescot Social Club the Purchaser (as the Transferee) shall enter into the following covenant with the Vendor (as the Transferor): "The Transferee with the object and intention of affording to the Transferor a full and sufficient indemnity but not further or otherwise HEREBY COVENANTS with the Transferor that the Transferee and the persons deriving title under the Transferee will at all times hereafter observe and perform the obligations on the part of the licensee contained in two Agreements made 16 February 1972 and 17 March 1972 between The British Railways Board (1) and British Insulated Callender's Cables Limited (2) so far as they are subsisting and capable of being enforced and taking effect and will keep the Transferor and the successors in title of the Transferor indemnified from and against all costs, claims, actions, proceedings, expenses and liability whatsoever for or on account of any breach non-observance or non-performance thereof" 4. Prescot Social Club is sold subject to and with the benefit of a residential tenancy in favour of Andrew Kearns relating to 103 Warrington Road Prescot (which forms part of Prescot Social Club) and of the lease short particulars of which are set out below ("the 198 BUSINESS SELLERS' SPECIAL CONDITION PROPERTY AFFECTED Prescot Social Club Leases"): DATE PARTIES TERM 06.04.1983 The Vendor (1) 125 years from Metropolitan 25 March 1983 Borough of Knowsley (2) and in the transfer of Prescot Social Club the Purchaser (as the Transferee) will covenant with the Vendor (as the Transferor) as follows: "The Transferee HEREBY COVENANTS with the Transferor that the Transferee and the Transferee's successors in title will henceforth during the continuance of the terms of [the Prescot Social Club Leases] observe and perform the landlord's obligations contained in or otherwise arising under [the Prescot Social Club Leases] and will indemnify the Transferor and the successors in title of the Transferor from and against all actions, proceedings, costs, claims, expenses and liability in respect of the same" HEBBURN 1. The title to Hebburn will commence with: as to part a Conveyance made 24 July 1964 between the Carr-Ellison Hebburn Estates Limited (1) and Pyrotenax Limited (2) as to part a Conveyance made 15 November 1967 between the Urban District Council of Hebburn (1) and Pyrotenax Limited (2) as to part a Conveyance made 16 April 1971 between The North Eastern Housing Association Limited (1) The Public Works Loan Commissioners (2) The Minister of Housing and Local Government (3) The Urban District Council of Hebburn (4) and Pyrotenax Limited (5) as to part a Conveyance made 2 September 1971 between Wailes Dove Bitumastic Limited (1) Lloyds Bank Limited (2) and Pyrotenax Limited (3) as to part a Conveyance made 9 August 1972 between Wailes Dove Bitumastic Limited (1) Lloyds Bank Limited (2) and Pyrotenax Limited (3) as to the remainder a Conveyance made 23 August 1962 between 199 Wailes Dove Bitumastic Limited (1) and Pyrotenax Limited (2) 2. Copies of the title documents having been produced to the Purchaser's Lawyers prior to the date of this Agreement the Purchaser shall neither make nor raise any objection or requisition regarding the title to Hebburn. 3. In the transfer of Hebburn the Purchaser (as the Transferee) will covenant with the relevant Business Seller (as the Transferor) as follows: "The Transferee with the object and intention of affording to the Transferor a full and sufficient indemnity but not further or otherwise hereby covenants with the Transferor that the Transferee and the persons deriving title under the Transferee will at all times hereafter observe and perform the covenants restrictions stipulations agreements and conditions contained or referred to in the documents set out below so far as they relate to Hebburn and are subsisting and capable of being enforced and taking effect and will keep the Transferor and the successors in title of the Transferor indemnified from and against all costs, claims, actions, proceedings, expenses and liability whatsoever for or on account of any breach, non-observance or non-performance thereof so far as aforesaid: - the covenants contained in a Conveyance made 24 July 1964 between the Carr-Ellison Hebburn Estates Limited (1) and Pyrotenax Limited (2) - the covenants on the part of the vendor contained in a Conveyance made 29 August 1991 between Pyrotenax Limited (1) and Barrett Newcastle Limited (2) - the covenants contained in a Conveyance made 15 November 1967 between The Urban District Council of Hebburn (1) and Pyrotenax Limited (2) - the provisions of an Agreement made 8 February 1957 between The British Transport Commission (1) and the Hebburn Urban District Council (2) - the covenants and provisions referred to in a Conveyance made 14 April 1920 between Ralph Henry Carr-Ellison (1) Peter William Purves and Anor (2) and The Urban District Council of Hebburn (3) insofar as they were not released by a Deed made 15 November 1967 between John Craddock Carr-Ellison and Others (1) and Pyrotenax Limited (2) 200 - the covenants and conditions contained in a Conveyance made 14 January 1938 between The Urban District Council of Hebburn (1) and the North Eastern Housing Association Limited (2) - the covenant on the part of the purchaser contained in a Conveyance made 16 April 1971 between The North Eastern Housing Association Limited (1) The Public Works Loan Commissioners (2) The Minister of Housing and Local Government (3) The Urban District Council of Hebburn (4) and Pyrotenax Limited (5) - the covenants and other matters contained mentioned or referred to in a Conveyance made 6 December 1926 between John Campbell Carr-Ellison (1) Peter William Purves and Anor (2) and Wailes Dove Bitumastic Limited (3) - the covenants contained in a Conveyance made 2 September 1971 between Wailes Dove Bitumastic Limited (1) Lloyds Bank Limited (2) and Pyrotenax Limited (3) - the provisions of two Agreements made 24 October 1924 and 24 May 1925 between The London and North Eastern Railway Company (1) and Wailes Dove Bitumastic Limited (2) - the covenants contained in a Conveyance made 9 August 1972 between Wailes Dove Bitumastic Limited (1) Lloyds Bank Limited (2) and Pyrotenax Limited (3) and - the covenants on the part of the Purchaser contained in a Conveyance made 23 August 1962 between Wailes Dove Bitumastic Limited (1) and Pyrotenax Limited (2) 4. The Vendor will hand over to the Purchaser on Completion the Statutory Declaration made by David Smart on 31 March 1999 relating to the relevant Business Seller's title to Hebburn. NOTTINGHAM 1. Title to Nottingham will be deduced in accordance with section 110 of the Land Registration Act 1925. 2. Nottingham is sold subject to and with the benefit of the tenancies and licences (the "Nottingham Leases") short particulars of which are set out below: Date Document Parties 201 02.02.1996 Agreement for use of Temco Limited(1) land and A.R. Bond(2) 08.11.1995 Lease of site of Fine Wires Limited(1) electricity sub-station and East Midlands Electricity Plc(2) 22.06.1995 Lease of land for BICC Public Limited display of Company(1) advertisements and Maiden Outdoor Advertising Limited(2) and in the transfer of Nottingham the Purchaser (as the Transferee) will covenant with the relevant Business Seller (as the Transferor) as follows: "The Transferee hereby covenants with the Transferor that the Transferee and the Transferee's successors in title will henceforth during the continuance of the terms of ["the Nottingham Leases"] observe and perform the landlord's obligations contained in or otherwise arising under ["the Nottingham Leases"] and will indemnify the Transferor and the successors in title of the Transferor from and against all actions, proceedings, costs, claims, expenses and liability in respect of the same". 3. In the transfer of Nottingham the Purchaser (as the Transferee) will covenant with the relevant Business Seller (as the Transferor) as follows: "The Transferee with the object and intention of affording to the Transferor a full and sufficient indemnity but not further or otherwise hereby covenants with the Transferor that the Transferee and the persons deriving title under the Transferee will at all times hereafter observe and perform the covenants contained or referred to in the Charges Registers of the title numbers NT98172, NT78063, NT72820, NT64705, NT59845, NT66997, NT65304, NT96593, NT80206 and NT72827 so far as they are still subsisting and capable of being enforced and taking effect and will keep the Transferor indemnified from and against all costs, claims, actions, proceedings, expenses and liability whatsoever for or on account of any breach non-observance or non-performance thereof so far as aforesaid". 4. The Vendor cannot produce the original or a copy or an abstract of the Conveyances dated 5 February 1885, 5 February 1895 and 7 October 1919 referred to in the Charges Registers of 202 title numbers NT80206 and NT78063 and the Purchaser shall not make or raise any objection or requisition with regard to the loss or non-production thereof. SWANSEA Title to Swansea will consist of: Sub-Underlease dated 14 December 1998 and made between (1) R.V.B Investments Limited and (2) BICC Components Limited Schedule of Condition prepared by Matthews & Goodman in November 1998 Underlease dated 21 February 1990 and made between (1) Sylfaen Construction Limited and (2) R.V.B Investments Limited Lease dated 21 February 1990 and made between (1) The Council of the City of Swansea and (2) Sylfaen Construction Limited A copy of each of the above documents having been produced to the Purchaser's Lawyers prior to the date of this Agreement the Purchaser shall neither make nor raise any objection or requisition regarding the title to Swansea. LEIGH 1 As to the unregistered land title will commence with: as to part a Conveyance and Assignment dated 1 September 1952 and made between The Anchor Cable Company Limited (1) and British Insulated Callender's Cables Limited (2) as to part a Conveyance dated 23 October 1961 and made between The Mayor Alderman and Burgesses of the Borough of Leigh (1) British Insulated Callender's Cables Limited (2) as to part a Conveyance dated 24 June 1964 and made between McGregor Bros Limited (1) British Insulated Callender's Cables Limited (2) as to part a Conveyance dated 14 December 1972 and made between British Railways Board (1) and British Insulated Callender's Cables Limited (2) as to part a Statutory Declaration made by Geoffey Howard Saunders on 31 March 1999 2 Title to the freehold land comprised in title number GM554320 which will be deduced in accordance with Section 110 of Land Registration Act 1925 3 Copies of the title documents having been produced to the Purchaser's Lawyers prior to the date of this Agreement the Purchaser shall neither make nor raise any objection or requisition regarding the title to Leigh 4 The Vendor is unable to locate any title documents to the land coloured brown on the plan annexed to the Statutory Declaration 203 made by Geoffrey Howard Saunders on 31 March 1999 ("the Statutory Declaration") relating to the Vendor's title to Leigh and the Purchaser shall raise no requisition nor make any objection with regard thereto. The Vendor will hand over to the Purchaser on completion the Statutory Declaration 5 The Vendor is selling that half of the road shaded blue and hatched green on plan 1 attached to the Statutory Declaration bordering the land comprised in title number GM 648967 with limited title guarantee 6 In the transfer of Leigh the Purchaser (as the Transferee) shall enter into the following covenant with the Vendor (as the Transferor): "The Transferee with the object and intention of affording to the Transferor a full and sufficient indemnity but not further or otherwise HEREBY COVENANTS with the Transferor that the Transferee and the persons deriving title under the Transferee will at all times hereafter observe and perform the covenants, restrictions, stipulations, agreements and conditions contained or referred to in the documents set out below so far as they relate to Leigh and are subsisting and capable of being enforced and taking effect and will keep the Transferor and the successors in title of the Transferor indemnified from and against all costs, claims, actions, proceedings, expenses and liability whatsoever for or on account of any breach, non-observance or non-performance thereof so far as aforesaid: Conveyance and Assignment dated 1 September 1952 between The Anchor Cable Company Limited (1) and British Insulated Callender's Cables Limited (2). Conveyance dated 9 November 1901 between the Trustees of the Will of the late Duke of Bridgewater (1) and The Anchor Cable Company Limited (2) insofar as they were not released by a Deed of Release dated 8th April 1993 between Starcrest Developments Limited (1) and BICC Plc (2). Agreement dated 6 October 1939 between J.W. Unsworth & others (1) and The Anchor Cable Company Limited (2) With the exception of Clause 4(a) the Conveyance and Assignment dated 18 July 1988 between BICC Plc (1) and Mr. P. Boydell (2) Clauses 12.3 and 12.4 of the Agreement dated 6 January 1993 between BICC Plc (1) and Cumbria Leisure Limited (2) Option Agreement dated 13 July 1993 between Wapping Leisure Limited (1) and BICC PLC (2). Sterilization Agreement dated 15 November 1955 between The National Coal Board (1) and British Insulated Callender's Cables Limited (2). 204 Supplemental Deed to Sterilization Agreement dated 4 September 1984 between BICC PLC (1) and the National Coal Board (2). Deed of Grant dated 30 November 1957 between The Manchester Ship Canal Company (1) and British Insulated Callender's Cables Limited (2) Agreement dated 20 July 1960 between The Manchester Ship Canal Company (1) and British Insulated Callender's Cables Limited (2) Agreement dated 22 January 1975 between The Manchester Ship Canal Company (1) and British Insulated Callender's Cables Limited (2) Licence to Abstract Water dated 21 January 1966 between Mersey and Weaver River Authority (1) and British Insulated Callendar's Cables Limited (2) Electricity Agreement dated 28 August 1957 between The North Western Electricity Board (1) and British Insulated Callender's Cables Limited (2) Agreement dated 12 December 1896 between The Trustees under the Will of Francis Duke of Bridgewater (1) The Right Honourable Francis Charles Granville Egerton Earl of Ellesmere (2) and Leigh Atherton Joint Sewerage Authority (3). Deed of Grant dated 30 May 1899 between The Trustees under the Will of Francis Duke of Bridgewater (1) The Right Honourable Francis Granville Egerton Earl of Ellesmere (2) and Urban District Council of Leigh (3). Deed of Grant dated 15 March 1916 between John Francis Granville Scrope Fourth Earl of Ellesmere (1) and Joseph Albert Pearse (2). Conveyance dated 28 July 1922 between John Francis Granville Scrope Fourth Earl of Ellesmere (1) and Thomas Henry Frederick Egerton (The Ellesmere Settlement Trustees) (2) and Leigh Football Club Ltd.(3). Conveyance dated 9 May 1925 between The Leigh Football Club Limited (1) William Moss (2) and The Anchor Cable Company Limited (3). Agreement dated 21 February 1861 between The London & North Western Railway Co. (1) The Trustees of the Will of Francis late Duke of Bridgewater (2) and The Right Honourable George Granville Egerton Earl of Ellesmere (3). Conveyance dated 31 December 1925 between Bridgewater Estates Limited (1) The Trustees of the Debenture Stockholders (2) and The Anchor Cable Company Limited (3). Conveyance dated 5 October 1901 between The Trustees of the Will of the Duke of Bridgewater (1) Earl of Ellesmere (2) and Alexander Cunningham McGregor and Richard McGregor (3) insofar as they were not released by a Deed of Release between Starcrest Developments Limited (1) and BICC Plc (2). Conveyance dated 28 October 1902 between Alexander McGregor and Richard McGregor (1) and McGregor Bros. Limited (2). Conveyance dated 17 November 1926 between McGregor Bros. Limited (1) and The Anchor Cable Company Limited (2). Conveyance dated 22 October 1940 between George Shaw & Company Limited (1) and The Anchor Cable Company Limited (2). 205 Conveyance dated 19 December 1924 between The Leigh Football Club Limited (1) George Shaw and Company Limited (2) and The Mayor Aldermen and Burgesses of the Borough of Leigh (3). Conveyance dated 23 October 1961 between The Mayor Aldermen and Burgesses of the Borough of Leigh (1) and British Insulated Callender's Cables Limited (2). Conveyance dated 24 June 1964 between McGregor Bros. Limited (1) and British Insulated Callender's Cables Limited (2). Conveyance dated 31 December 1863 between The Right Honourable Robert Lord Ebury and others (1) George Law (2) and the London and North Western Railway Company (3). Conveyance dated 14 December 1972 between British Railways Board (1) and British Insulated Callender's Cables Limited (2). Transfer dated 22 December 1998 between BICC PLC (1) and John Derek Hart and Alan Fred Taylor (2) The matters referred to in the Charges Register for Title Number GM554320 (if applicable) 6. The Vendor shall indemnify the Purchaser against any loss suffered by the Purchaser as a result of any payments properly made by the Purchaser in respect of moneys due to Mr P. Boydell pursuant to the Conveyance and Assignment dated 18 July 1988 referred to above. 7. The Vendor cannot produce the original or a copy or an abstract of 7.1 the following Conveyances and Agreements noted on the Conveyance and Assignment dated 1 September 1952 between The Anchor Cable Company Limited (1) and British Insulated Callender's Cables Limited (2): Agreement dated 21 July 1971 between British Insulated Callender's Cables Limited (1) and The Mayor Alderman & Burgesses of the Borough of Leigh (2). Agreement dated 12 February 1973 between Bridgewater Estates Limited (1) BICC Limited (2) and The Mayor Alderman & Burgesses of the Borough of Leigh (3). Transfer dated 15 November 1976 between BICC Limited (1) and Carndale Property Company Limited (2). Assignment dated 19 August 1983 between BICC plc (1) and Carndale Property Limited (2). Transfer dated 19 August 1983 made between BICC plc (1) and J&D J Parnall (2). 206 Assignment dated 7 May 1984 between BICC plc (1) and JJ and MC Lawton (2). Assignment dated 19 August 1983 made between BICC plc (1) and Hightown Homes Limited (2). Transfer dated 6 September 1983 made between BICC plc (1) and The Greater Manchester County Council (2). Conveyance dated 15 November 1985 and made between BICC plc (1) and Norman Fletcher and William Herbert Bates (2). 7.2 such other Conveyances and Assignments and Transfers which may have been entered into for the disposal of land formerly forming part of Leigh and the Purchaser shall neither make nor raise any objection or requisition with regard to the loss or non production thereof. 8. Leigh is sold subject to and with the benefit of the provisions of Annexure o which will take effect from Completion. WREXHAM 1 As to the unregistered land title will commence with: as to part a Conveyance dated 19 November 1966 and made between Herbert Bellis (1) and British Insulated Callender's Cables Limited (2) as to the remainder a Conveyance dated 19 November 1966 and made between Marston Frank Freeman (1) and British Insulated Callender's Cables Limited (2). 2 Title to the freehold land comprised in title number WA4134 will be deduced in accordance with Section 110 of Land Registration Act 1925 3 Copies of the title documents having been produced to the Purchaser's Lawyers prior to the date of this Agreement the Purchaser shall neither make nor raise any objection or requisition regarding the title to Wrexham 4 In the transfer of Wrexham the Purchaser (as the Transferee) shall enter into the following covenant with the Vendor (as the Transferor): "The Transferee with the object and intention of affording to the Transferor a full and sufficient indemnity but not further or otherwise HEREBY COVENANTS with the Transferor that the Transferee and the persons deriving title under the Transferee will at all times hereafter observe and perform the covenants, restrictions, stipulations, agreements and conditions contained or referred to in the documents set out below so far as they relate to Wrexham and are subsisting and capable of being 207 enforced and taking effect and will keep the Transferor and the successors in title of the Transferor indemnified from and against all costs, claims, actions, proceedings, expenses and liability whatsoever for or on account of any breach, non-observance or non-performance thereof so far as aforesaid: A Conveyance dated 30 January 1959 made between The Minister of Agriculture Fisheries and Food and another (1) and Herbert Bellis (2). Deed of Exchange dated 12 November 1986 made between Ian Pilson and Barbara Ann Pilson (1) Abbey National Building Society (2) and BICC plc (3). Conveyance dated 29 March 1960 made between The Minister of Agriculture Fisheries and Food (1) and Marston Frank Freeman (2). Conveyance dated 31 October 1962 made between Stanley Davis (1) and Marston Frank Freeman (2). Conveyance dated 2 June 1964 made between The Minister of Agriculture Fisheries and Food (1) and Marston Frank Freeman (2). Conveyance dated 10 October 1966 made between Herbert Bellis (1) and Marston Frank Freeman (2). The Charges Register for Title Number WA4314 5 Wrexham is sold subject to and with the benefit of the oral tenancies and licences ("the Wrexham Leases") in favour of the following occupants: 5.1 PPAR Construction 5.2 Lex Harvey 5.3 BICC Athletic and Social Club and 5.4 Angling Club 6. The Vendor cannot produce the original or a copy or an abstract of 6.1 the following Conveyances noted on the Conveyance dated 19 November 1966 and made between Marston Frank Freeman (1) and British Insulated Callender's Cables Limited (2): Conveyance dated 31 October 1972 made between British Insulated Callender's Cables Limited (1) and Richard Blantern (2) and Conveyance dated 20 August 1984 made between BICC Plc (1) and Peter Bryan Edwards and Joyce Edwards (2) 6.2 The Conveyance dated 19 November 1959 made between the Minister of Agriculture Fisheries and Food (1) and Herbert Bellis (2) referred to in a Deed of Exchange dated 12 November 1986 made between Ian Pilson and Barbara Ann Pilson (1) Abbey National Building Society (2) and BICC Plc (2) 6 6.3 The Conveyance dated 25 March 1949 made between the Minister of 208 Supply (1) and the Board of Trade (2) 6.4 The Conveyance dated 13 November 1970 made between John Garry Bellis and Sheila Keys (1) and Charles Stanley Colling and Margaret Beatrice Colling (2) 6.5 The Conveyance dated 3 December 1979 made between Charles Stanley Colling and Margaret Beatrice Colling (1) and Matthew Rowe Thomas and Alice Mary Thomas(2) 6.6 The Deed dated 30 January 1951 made between the Board (1) and Wrexham & East Denbighshire Water Company (2) 6.7 The Deed dated 9 April 1951 made between the Board (1) and Wales Gas Board (2) 6.8 The Conveyance dated 12 May 1948 made between Right Honorable Lloyd Tyrell-Kenyon 5th Lord Kenyon Baron of Credington (1) and The Board (2) 6.9 The Deed of Grant dated 28 November 1949 made between The Board (1) and Wrexham Rural District Council (2) 6.10 Licence dated 7 February 1950 made between The Board (1) and Wrexham and East Denbighshire Water Company(2) and the Purchaser shall not make or raise any objection or requisition with regard to the loss or non-production thereof. 7. The Vendor will hand over to the Purchaser on completion the Statutory Declaration made by Malcolm Delmar Jones on 1 April 1999 relating to the Vendor's title to Wrexham. 8. Wrexham is sold subject to and with the benefit of the provisions of Annexure o which will take effect as from the date of this Agreement. 209 SCHEDULE 15 LIST OF SELLERS' INTELLECTUAL PROPERTY PART A PATENTS OWNED BY THE RELEVANT SELLERS TO BE TRANSFERRED TO THE PURCHASER OR RELEVANT PURCHASER (AS THE CASE MAY BE)
TITLE COUNTRY STATUS PATENT APPLICATION TITLE HOLDER OF RECORD IF NUMBER NUMBER NOT BICC PLC OR RELEVANT SELLER Skin modification NZ Granted 235875 235875 Char stabiliser tape US Granted 5310964 07/917316 Irradiated Prespiral CA Pending 2144144 US Granted 56679192 08/398517 Lead-Free with Zn AR Pending 336634 MX Pending GB96/01252 US Pending 08/945825 PE Pending 00403 Oxygen Dipole Additive CA Pending 2259349 WO Pending 98/21278 Preformed-slug barrier CA Granted 1122129 341740 US Granted 4301325 103628 Labyrinth flame barrier CA Granted 1149036 357769 Multiturn trefoil cleat (base) CA Granted 1161624 383712 DE Granted 3174460 81303648 EP Granted 0048086 81303648 ES Granted 260001 260001 ES Granted 263279 263279 ES Granted 263280 263280 FR Granted 0048086 81303648 GB Granted 2082242 8124453 HK Granted 793/84 IT Granted 0048086 81303648 MY Granted 687/1985 NL Granted 0048086 81303648 SE Granted 0048086 81303648 SG Granted 461/84 8490461-4 US Granted 4397436 291779 Sabah Granted 292/1985 Sarawak Granted C2299 ZA Granted 81/5493 815493
210
TITLE COUNTRY STATUS PATENT APPLICATION TITLE HOLDER OF RECORD IF NUMBER NUMBER NOT BICC PLC OR RELEVANT SELLER Multiturn trefoil cleat - strap AT Granted E16631 81303647 tensioner CA Granted 1147932 383713 CH Granted 0047075 81303647
211
TITLE COUNTRY STATUS PATENT APPLICATION TITLE HOLDER OF RECORD IF NUMBER NUMBER NOT BICC PLC OR RELEVANT SELLER Multiturn trefoil cleat - strap DE Granted 3172984 81303647 tensioner (Continued) DK Granted 151832 813604 EP Granted 0047075 81303647 ES Granted 260002 260002 FR Granted 0047075 81303647 GB Granted 2081802 8124452 HK Granted 148/85 IT Granted 0047075 81303647 MY Granted 1125/1985 NL Granted 0047075 81303647 NO Granted 159414 812734 SE Granted 0047075 81303647 SG Granted 884/84 Sabah Granted 30/86 Sarawak Granted C 2516 ZA Granted 81/5492 815492 Variable pohl clamp - sub- CA Granted 1159036 384619 assembly Spider washer CA Granted 1079029 403544 GB Granted 0093524 83302094 US Granted 4515991 06/482144 Cable tie clip GB Granted 2140858 8411276 NO Granted 158553 841762 Optional-claw cleat DE Granted 9105112 9105112 GB Granted 2244087 9109104 HK Granted 94420 BL Cleat CA Pending 2162389 GB Granted 2292180 9522278 Thickened Shroud Seal US Pending 08/867812 ZA Granted 9510312 9510312 Sheath Pierce Termination GB Granted 2300765 9509667 Snap Gland GB Pending 9904480 Inside Entry Gland GB Published 9801998 Sealed Pierce Connector GB Pending 9902956
212
TITLE COUNTRY STATUS PATENT APPLICATION TITLE HOLDER OF RECORD IF NUMBER NUMBER NOT BICC PLC OR RELEVANT SELLER Helical Earth Bond GB Pending 9624610 Rights jointly owned by Preformed Line Products Ltd & BICC plc Compressed Pierce GB Pending 9624609 Rights jointly owned by Connector Preformed Line Products Ltd & BICC plc Flameproof locking ring CA Granted 1184986 412177 Modular boot GB Granted 2265501 9306276 Groovy Wiring Cable GB Granted 2275816 9403946 HK Granted 326/1997 Tear Off Reel GB Pending 9821266.5 Pressline End Cleat GB Granted 1019819 1019819 Sleeved rubber moulding GB Granted 2249223 9120337 HK Granted 1125/95 9120337 SG Granted 9591027-9 9120337 Curved Termination FR Granted 9502411 9502411 GB Granted 2287366 9504294 Stud Extender FR Granted 9613725 9613725 GB Published 9719494 Street Light Harness GB Pending 9808688 Heat Sink sheath CH Granted 0366473 89311077 EP Granted 0366473 89311077 GB Granted 0366473 89311077 HK Granted 1902/1996 89311077 IT Granted 0366473 89311077 SG Granted 9592259 Char stabiliser tape AT Granted 0526081 92306675 BE Granted 0526081 92306675 CA Granted 2074572 2074572 CH Granted 0526081 92306675 DE Granted 0526081 92306675 DK Granted 0526081 92306675
213
TITLE COUNTRY STATUS PATENT APPLICATION TITLE HOLDER OF RECORD IF NUMBER NUMBER NOT BICC PLC OR RELEVANT SELLER EP Granted 0526081 92306675 ES Granted 0526081 92306675 FR Granted 0526081 92306675 GB Granted 0526081 92306675 GR Granted 0526081 92306675 HK Granted 1000743 97102347 Char stabiliser tape IT Granted 0526081 92306675 (Continued) LU Granted 0526081 92306675 NL Granted 0526081 92306675 PT Granted 0526081 92306675 SE Granted 0526081 92306675 SG Granted 44741 9606680 Viscosity monitor CA Granted 1311866 559897 Semiconducting Monosil CA Granted 1166324 386092 Box reel - corrugated hub CA Granted 1217623 Reel/box reel manufacture CA Granted 1235291 446512 Laminated moisture barrier CA Granted 2003427 2003427 GB Granted 2225480 8926657 US Granted 5006670 07/438008 Vacuum filling strand GB Granted 2244849 9111555 Flexible Glover barrier CA Granted 1210619 429952 On-line void detection CA Granted 1222073 456927 Fill/draw/in-line anneal CA Granted 1068084 265153 Metallic constant watt AU Granted 594413 8767525 IT Granted 1205701 8747528 MI/cable/EMAT CA Granted 2013787 2013787 GB Granted 2232250 9007644 Temperature sensor CA Granted 2061212 2061212 pockets Tip Clearance Probe CA Pending 2244886 EP Published 97903454 JP Pending 529096/97 US Granted 5760593 08/615372
214
TITLE COUNTRY STATUS PATENT APPLICATION TITLE HOLDER OF RECORD IF NUMBER NUMBER NOT BICC PLC OR RELEVANT SELLER Thermocouple Probe GB Published 9815821 Capacitance Transducer CA Pending 2243215 Rights jointly owned by Apparatus and Cables BICC plc & Fylde Electronics Ltd EP Published 97902437 Rights jointly owned by BICC plc & Fylde Electronics Ltd Capacitance Transducer HK Pending 99100647 Rights jointly owned by Apparatus and Cables BICC plc & Fylde (Continued) Electronics Ltd JP Pending 527427/97 Rights jointly owned by BICC plc & Fylde Electronics Ltd US Pending 09/117208 Rights jointly owned by BICC plc & Fylde Electronics Ltd Tip Clearance Probe - GB Pending 9815823 Concept 5 Continuous fill/draw CA Granted 1187271 395844 Silicone impregnated M.I. GB Granted 2154783 8504380 Fire sealing pot (1) CA Granted 1261416 513461 FR Granted 8610976 8610976 GB Granted 2178606 8618416 IT Granted 1195890 8648341 Forced-flow powder filling AU Granted 615607 9050100 DE Granted 69005478 90301968 EP Granted 0384778 90301968 FR Granted 0384778 90301968 GB Granted 2230894 9004185 M.I. optical cable - case 2 GB Granted 2233788 9015244 Continuous sheathing GB Granted 2241255 9020557 Welding MIC sheath AT Granted 0452087 91303109 AU Granted 637894 9174368 BE Granted 0452087 91303109 CA Pending 2040193 2040193 CH Granted 0452087 91303109 DE Granted 0452087 91303109 DK Granted 0452087 91303109 EP Granted 0452087 91303109
215
TITLE COUNTRY STATUS PATENT APPLICATION TITLE HOLDER OF RECORD IF NUMBER NUMBER NOT BICC PLC OR RELEVANT SELLER ES Granted 0452087 91303109 FR Granted 0452087 91303109 GB Granted 2243483 9107453 GR Granted 0452087 91303109 IT Granted 0452087 91303109 LU Granted 0452087 91303109 NL Granted 0452087 91303109 SE Granted 0452087 91303109 Shaped M.I. conductor GB Granted 2247982 9119334 Hinged seal AU Granted 659095 9183825 CA Pending 2051823 DE Granted 69107748 91308263 EP Granted 0476909 91308263 ES Granted 0476909 91308263 FR Granted 0476909 91308263 GB Granted 0476909 91308263 IT Granted 0476909 91308263 SG Granted 0476909 9591536-9 US Granted 5198619 07/757226 Peelable Blister Pack GB Granted 2258647 9214383 Welding electrode control GB Granted 2257543 9214403 Stripping Head Assembly GB Granted 2288695 9507374 Silica/Silicone MI Cable EP Pending 98903200 WO Published GB98/00438 Mullite/Silica MI Cable EP Pending 98910830 WO Pending GB98/00665 Cable straightening tool GB Granted 2216443 8905994 Cable bending tool GB Granted 2216829 8905915 Ultrasonic drawing down DE Granted 0573313 93304420 EP Granted 0573313 93304420 ES Granted 0573313 93304420 FR Granted 0573313 93304420 GB Granted 0573313 93304420 IT Granted 0573313 93304420 Mullite M.I. Cable GB Pending 9813587
216
TITLE COUNTRY STATUS PATENT APPLICATION TITLE HOLDER OF RECORD IF NUMBER NUMBER NOT BICC PLC OR RELEVANT SELLER Flatpack Stator EP Published 96303606 Barrier feed joint US Granted 4330681 178790 Simple stop joint US Granted 4354050 1085944 Field moulded joint GB Granted 2268005 9312409 SG Published 9601142-4 O-ring stripping tool GB Granted 2272113 9321610 US Granted 5581885 08357185 3-D Conductive Polymers EP Published 96940028 GB Published 9811694 Foil Laminate Sheath AU Pending 43921/97 EP Pending 97942126 GB Pending 9620394 MY Pending PI9704535 Pinned Insulation WO Pending GB98/02662 ZA Pending 988165 Unbonded Laminate MY Pending PI9804148 Sheath WO Pending GB98/02707 Chips in Oil GB Pending 9900190 Oversheath Fault Monitor EP Pending 99301696 Radio Discharge Detection GB Pending 9809713 Sub-Cable Discharge Test GB Pending 9900820 Cypermethrin Masterbatch GB Granted 2276171 9404236 Rights jointly owned by BICC plc & Pirelli General plc SG Granted 47815 9604547 Rights jointly owned by BICC plc & Pirelli General plc HK Granted 1000725 97102348 Rights jointly owned by BICC plc & Pirelli General plc Mercury Superconductor BE Granted 0651909 93916112 CA Pending GB9301529 DE Granted 69309069 93916112 ES Granted 0651909 93916112
217
TITLE COUNTRY STATUS PATENT APPLICATION TITLE HOLDER OF RECORD IF NUMBER NUMBER NOT BICC PLC OR RELEVANT SELLER FR Granted 0651909 93916112 GB Granted 0651909 93916112 IT Granted 0651909 93916112 LU Granted 0651909 93916112 PT Granted 0651909 93916112 US Granted 5550105 GB9301529 Cross Rolling GB Granted 2278081 9310058 Loosely Housed AT Granted 0830692 96916226 Rights jointly owned by Superconductor BICC plc & BICC CEAT Cavi Srl AU Published 59053/96 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl Loosely Housed BE Granted 0830692 96916226 Rights jointly owned by Superconductor BICC plc & BICC CEAT Cavi Srl (Continued) CA Pending 2224272 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl CH Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl CN Published 96195945 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl DE Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl DK Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl EG Pending 512/96 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl EP Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl ES Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl FI Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl FR Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl GB Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl GR Granted 0830692 96916226 Rights jointly owned by
218
TITLE COUNTRY STATUS PATENT APPLICATION TITLE HOLDER OF RECORD IF NUMBER NUMBER NOT BICC PLC OR RELEVANT SELLER BICC plc & BICC CEAT Cavi Srl IE Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl IN Pending 1233/DEL/96 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl IT Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl JP Pending 500218/97 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl LU Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl MC Published 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl MY Pending PI 9602294 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl Loosely Housed NL Granted 0830692 96916226 Rights jointly owned by Superconductor BICC plc & BICC CEAT Cavi Srl (Continued) PH Pending 53427 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl PT Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl SE Granted 0830692 96916226 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl SG Pending 9706091-7 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl TW Granted 088926 85106946 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl US Pending 08/973170 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl ZA Granted 96/4882 96/4882 Rights jointly owned by BICC plc & BICC CEAT Cavi Srl Linear Tape MY Pending Pi9802916 PE Pending 434.98 WO Published GB98/01835 Radial Superconductor GB Pending 9807348
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TITLE COUNTRY STATUS PATENT APPLICATION TITLE HOLDER OF RECORD IF NUMBER NUMBER NOT BICC PLC OR RELEVANT SELLER Current Leads - Anchor GB Pending 9819545 Hydral loaded EVA US Granted 4370076 123433 Wiring cable/separable CA Granted 1197297 429951 earth
220 PART B REGISTERED DESIGNS OWNED BY THE RELEVANT SELLERS TO BE - ------ TRANSFERRED TO THE PURCHASER OR RELEVANT PURCHASER (AS THE CASE MAY BE)
TITLE COUNTRY STATUS PATENT APPLICATION TITLE HOLDER OF RECORD IF NUMBER NUMBER NOT BICC PLC OR RELEVANT SELLER Through Connector Case 2 GB Granted 1044940 1044940 Through Connector Case 3 GB Granted 1044941 1044941 Tapping Connector Case 1 GB Granted 1044942 1044942 Tapping Connector Case 2 GB Granted 1044943 1044943 'Pressline' end cleat GB Granted 2159206 8512996 Serrated Y Connector GB Granted 1060854 1060854 Reversible Press Line GB Granted 2078732 2078732 Cleat Press Line Corner Cleat GB Granted 2079273 2079273 Pressline Control Box GB Granted 2079713 2079713
221 PART C TRADEMARKS TO BE ASSIGNED FROM RELEVANT SELLER TO THE - ------ PURCHASER OR RELEVANT PURCHASER (AS THE CASE MAY BE)
TRADEMARK COUNTRY STATUS REGISTRATION APPLICATION OWNER IF NOT BICC NUMBER NUMBER PLC OR RELEVANT SELLER EASIPEEL CABLES NZ Registered 231502 231502 MM Cables N.Z. Ltd (Assignment to BICC plc in progress) FIRETARD NZ Registered 185049 185049 MM Cables N.Z. Ltd (Assignment to BICC plc in progress) HYPERFLEX NZ Pending 290642 MM Cables N.Z. Ltd (Assignment to BICC plc in progress) RELIANCE GB Registered 577479 577479 TELECLEATS US Registered 1251654 73/279935 BICC ARMAFLEX BX Registered 76989 559251 BIMODRUM GB Registered 1514436 1514436 CONCEL IR Registered 83938 7612464 DEVILEAD LY Pending 8854 DEVILENE LY Pending 8855 DEVILENE IR Registered 82948 7608274 DEVILINE LY Pending 8856 DEVILINE IR Registered 83939 7612462 PHILLIPS CA Registered UCA11491 173600 HELIBOND DK Registered 01565/1996 01018/1996 Jointly owned by BICC plc and Preformed Line Products Ltd. HELIBOND GB Registered 2056335 2056335 Jointly owned by BICC plc and Preformed Line Products Ltd. HELIBOND NO Registered 184203 1996/0929 Jointly owned by BICC plc and Preformed Line Products Ltd. HELIBOND FI Registered 203156 737/96 Jointly owned by BICC plc and Preformed Line Products Ltd.
222
TRADEMARK COUNTRY STATUS REGISTRATION APPLICATION OWNER IF NOT BICC NUMBER NUMBER PLC OR RELEVANT SELLER HELIBOND SE Registered 317385 96-01599 Jointly owned by BICC plc and Preformed Line Products Ltd.
223
TRADEMARK COUNTRY STATUS REGISTRATION APPLICATION OWNER IF NOT BICC PLC NUMBER NUMBER OR RELEVANT SELLER RANGER GB Registered 2149990 2149990 TELCLEAT GB Registered B1139157 B1139157 BICAST AE Pending BICAST SA Registered 106/66 2741/1401 BICAST FR Registered 1679793 252517 BICAST FR Registered 1262023 692496 BICAST NZ Registered 107433 107433 BICAST MY Pending M/89028 BICAST BX Registered 325902 301829 BICAST AU Registered A276555 A276555 BICAST GB Registered 997703 997703 BICC BICAST device DE Registered 1008761 B64509/9WZ BITHANE GB Registered 1396582 1396582 BITHANE GB Registered 1099097 1099097 CORALINE GB Registered 637017 637017 CORALINE NZ Registered 42459 42459 MODULUS GB Registered 2114309 2114309 MODULUS GB Registered 2112546 2112546 BICALFLUX GB Registered 918456 918456 BICASEAL GB Registered 1395944 1395944 BICC BIMOLD GB Registered 1311272 1311272 BICC BIMOLD device GB Registered 1202575 1202575 BIWRAP GB Registered B1176157 1176157 FLAMBIC GB Registered 1160633 1160633 FLAMBIC AU Registered A393624 A393624
224
TRADEMARK COUNTRY STATUS REGISTRATION APPLICATION OWNER IF NOT BICC PLC NUMBER NUMBER OR RELEVANT SELLER FLAMBICC GB Registered 1408029 1408029 FLAMBICC DE Registered 1170377 B88902/9Wz LSF device GB Registered 1164357 1164357 MULTI-PLUS GB Registered 2129111 2129111 FLEXO GB Registered 1015375 1015375 PoweRise device HK Pending 7198/97 PoweRise device GB Published 2133995 2133995 PRESSLINE GB Published 2152685 PRESSLINE device GB Registered 2153550 2153550 BICC-PHILLIPS CA Registered 454652 758411 CABLES PHILLIPS CA Registered TMA393848 654610 design LES CABLES PHILLIPS CA Registered TMA242675 427619 design PHILLIPS CABLES CA Registered TMA196575 358725 PHILLIPS CABLES CA Registered TMA398429 653714 design BICCROD GB Registered 1030630 1030630 PYROTENAX CA Registered UCA44701 221644 BPTX GB Registered B1191922 1191922 CUMIC GB Registered 878544 878544 CUMIC BX Registered 82031 564124 JOISTRIPPER GB Registered 1119912 1119912 MINERAX ES Registered 2032752 2032752 MINERAX FR Registered 1622163 244062 PYRO GB Registered 1503539 1503539 PYRO GB Registered 1417319 1417319
225
TRADEMARK COUNTRY STATUS REGISTRATION APPLICATION OWNER IF NOT BICC PLC NUMBER NUMBER OR RELEVANT SELLER PYRO MATE GB Registered 1525915 1525915 PYROTENAX SG Registered 49827 49827 PYROTENAX AT Registered 161377 AM1908/94 PYROTENAX DK Registered 2980/1979 522/1979 BICC Pyrotenax Ltd PYROTENAX GB Registered 842507 842507 PYROTENAX SG Registered 49824 49824 PYROTENAX GB Registered 842506 842506 PYROTENAX GB Registered 799061 799061 PYROTENAX GB Registered 668777 668777 PYROTENAX GB Registered 573864 573864 PYROTENAX AU Registered A70386 A70386 PYROTENAX IN Registered 204690 204690 PYROTENAX GB Registered 1140539 1140539 PYROTENAX NZ Registered 64973 64973 PYROTENAX AU Registered A157445 A157445 PYROTENAX AU Registered A157447 A157447 PYROTENAX BH Registered 5547 167/80 BICC Pyrotenax Ltd PYROTENAX BH Registered 5548 166/80 BICC Pyrotenax Ltd PYROTENAX IE Registered 63160 63160 Pyrotenax Ltd PYROTENAX SG Registered 49826 49826 PYROTENAX NZ Registered 35971 35971 PYROTENAX SG Registered 49825 49825 PYROTENAX NZ Registered 69255 69255 PYROTENAX ZA Registered 59/4145/1 59/4145/1 PYROTENAX ZA Registered 59/4145/2 59/4145/2 PYROTENAX ZA Registered 59/4145/3 59/4145/3
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TRADEMARK COUNTRY STATUS REGISTRATION APPLICATION OWNER IF NOT BICC PLC NUMBER NUMBER OR RELEVANT SELLER PYROTENAX ZA Registered 59/4145/4 59/4145/4 PYROTENAX ZA Registered 620/37 620/37 PYROTENAX IN Registered 204691 204691 PYROTENAX IE Registered 63161 63161 Pyrotenax Ltd PYROTENAX ZM Registered 1140/62 1140/62 Pyrotenax Ltd PYROTENAX PK Registered 5999 5999 PYROTENAX IN Registered 204689 204689 PYROTENAX ZM Registered 1141/62 1141/62 Pyrotenax Ltd PYROTENAX IN Registered 137052 137052 PYROTENAX MW Registered 1142/62 1142/62 PYROTENAX MW Registered 1141/62 1141/62 PYROTENAX MW Registered 1140/62 1140/62 PYROTENAX LK Registered 20743 20743 PYROTENAX KW Registered 10723 11609 PYROTENAX SA Registered 90/28 3062/1400 BICC Pyrotenax Ltd PYROTENAX HK Registered 727/71 727/71 PYROTENAX ZM Registered 1142/62 1142/62 Pyrotenax Ltd PYROTENAX HK Registered 725/71 725/71 PYROTENAX HK Registered 726/71 726/71 PYROTENAX HK Registered 728/71 728/71 PYROTENAX JM Registered 9447 9447 PYROTENAX JM Registered 9448 9448 PYROTENAX JM Registered 9468 9468 PYROTENAX IR Registered 51681 75125 BICC Pyrotenax Ltd PYROTENAX DE Registered 39514590 39514590.2 PYROTENAX IT Registered 713618 RM95C001686
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TRADEMARK COUNTRY STATUS REGISTRATION APPLICATION OWNER IF NOT BICC PLC NUMBER NUMBER OR RELEVANT SELLER FLAMSIL GB Registered 1545997 1545997 FLAMSIL DE Registered 2070421 B99485/9WZ FLAMSIL FR Registered 93/482763 93/482763 MICRIMP GB Registered 844317 844317 MIKABEL DE Registered 794683 P11904 Pyro GB Published 2168468 PYROGRASP series GB Published 2164072 PYROPAK US Registered 679940 72/059435 PERMAHEAT GB Registered 1353299 1353299 BICC Pyrotenax Ltd PERMAHEAT GB Registered 1390455 1390455 BICC Pyrotenax Ltd PERMAHEAT device GB Registered 1083057 1083057 BICC Pyrotenax Ltd PYRO-SIL GB Registered 1498446 1498446 PYROLINE GB Published 2158470 THERMOHEAT GB Registered 2049350 2049350 PYROTENAX US Registered 702182 72/076437 BICCLAM JP Registered 3329700 35206/95 BICCLAM GB Registered 1116169 A1116169 BICCLAM US Published 75/357725 BICCLAM GB Registered 1179099 1179099 BICCLAM CA Registered TMA378803 632231 LEAN ID Pending 22057 LEAN CN Pending 9800145722 LEAN EM Pending 966754 LEAN US Pending 75/621310 LEAN AU Pending 781586
228
TRADEMARK COUNTRY STATUS REGISTRATION APPLICATION OWNER IF NOT BICC PLC NUMBER NUMBER OR RELEVANT SELLER LEAN GB Published 2168474 LEAN ID Pending 22058 LEAN ID Pending 22059 LEAN HK Pending 16974/1998 LEAN HK Pending 16975/1998 LEAN HK Pending 16976/1998 LEAN SG Pending 12691/98 LEAN SG Pending 12692/98 LEAN SG Pending 12693/98 LEAN CN Pending 9800145721 LEAN CN Pending 9800145720 LEAN CA Pending 1000644 ONWOOD GB Registered 2144058 2144058 PANGOLIN GB Registered 1570407 1570407 Cryobicc AU Registered 739351 739351 Cryobicc EM Pending 584458 Cryobicc CA Pending 850946 Cryobicc CN Registered 1244931 970073055 Cryobicc JP Pending 142578/97 Cryobicc MY Pending MA/10108/97 Cryobicc SG Pending S/8858/97 Cryobicc CH Registered 448417 05572/1997 Cryobicc device GB Registered 2138455 2138455 ECONEX EM Pending 1029255 ECONEX US Pending 75/621309
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TRADEMARK COUNTRY STATUS REGISTRATION APPLICATION OWNER IF NOT BICC PLC NUMBER NUMBER OR RELEVANT SELLER BONUS GB Registered 1511347 1511347 BONUS GB Registered 1511348 1511348 BONUS GB Registered 1511346 1511346 GROUPWHERE series GB Registered 2115297 2115297 GREENGATE NIPLAS GB Registered 1116991 1116991 Sterling Greengate TUBE WELD Cable Company Ltd NIPLAS GB Registered 803340 803340
230 PART D LICENCES OUT OF SELLERS' INTELLECTUAL PROPERTY AND SELLERS' KNOW-HOW ------
OTHER PARTY SUBJECT AGREEMENT TYPE Caribbean Cables Ltd BICC Trademark Registered User Agreement Incab Industries Ltd XLPE Cables Technical Collaboration Agreement Borealis A/S Monosil Semiconducting Screens Know-How Licence and Supply Agreement Hawke Cable Glands Ltd Letter Agreement dated 1/11/93 Asian Cables & Industries Ltd Agreement dated 14/6/96 Advanced Elastomer Systems SNV SA Agreement datd 27/3/96 Alcan Chemicals, Ltd Agreement dated 24/6/97 Metal Manufacturers Limited "Pyrotenax" Trade Mark Licence Authorised User Agreement
231 PART E LICENCES IN OF SELLERS' INTELLECTUAL PROPERTY AND SELLERS' KNOW-HOW ------
OTHER PARTY SUBJECT AGREEMENT TYPE National Research Development Corporation High Modulus Polymers Licence Agreement Lynxvale Ltd Thallium-Strontium Superconductor Licence Agreement Compositions Hawke Cable Glands Ltd. Barrier Cable Glands Licence Agreement SILEC Elastomeric Cable Terminations Know-how and Patent Licence Agreement Hitachi XLPE Cables Technical Collaboration and Licence Agreement Hitachi XLPE Cables Technical Collaboration Agreement NOR.WEB DPL Ltd. Digital Power Line Collaboration Agreement Corning, Inc. Licence back of rights acquired from BICC Patent Licence Agreement for use in its Energy business Goodwin Emck Agreement dated 7/11/97 Preformed Line Products Agreement dated 15/11/95
232 PART F CROSS LICENCES OF SELLERS' INTELLECTUAL PROPERTY AND SELLERS' KNOW-HOW ------
OTHER PARTY SUBJECT AGREEMENT TYPE Pacific Dunlop Ltd Fire Resistant Cables Settlement of Opposition Proceedings and Patent Cross Licence Agreement
233
PART G DEVELOPMENT AGREEMENTS Finmeccanica SPA - Azienda Superconducting Cable Collaboration Agreement BICC Cables Ltd Ansaldo and Ansaldo Richerche (Energy) S.r.l. Queens University, Kingston, Feasibility Study to Sponsored Development BICC Pyrotenax Ltd. Ontario. investigate Sheath Materials Work Agreement for use in Mineral Insulated Cables and Thermocouples Ortech Corporation Positive Temperature Sponsored Development BICC Pyrotenax Ltd. Coefficient Resistors relating Work Agreement to Mineral Insulated Heater Cable PIRA International Improved Packaging Process Sponsored Development BICC Industrial Work Agreement Special Cables, Leigh EA Technology Ltd The development of a novel, Sponsored Development BICC Energy non-equilibrium plasma system Work Agreement Technology, Wrexham (atmospheric pressure microwave) for coating polymerically insulated power cables. Ontario Hydro Technology Electrolumenescence of XLPE Sponsored Development BICC Energy Cables. Work Agreement Technology, Wrexham Ontario Hydro Technology Resistance to Failure of EPR Sponsored Development BICC Energy Cables. Work Agreement Technology, Wrexham Ontario Hydro Technology Pre-breakdown Defect Detection Sponsored Development BICC Energy Work Agreement Technology, Wrexham University of Wales, Bangor Electromechanical Strain at Sponsored Development BICC Energy Polymer Interfaces and the Work Agreement Technology, Wrexham Initiation of Failure in High Voltage Cables. University of Wales, Bangor Electromechanical Strain at Supplemental Letter BICC Energy Polymer Interfaces and the Agreement - Technology, Wrexham Initiation of Failure in High Contribution to Voltage Cables. Purchase of ab Atomic Force Microscope.
234 University of Wales, Bangor Electromechanical Endurance Sponsored Development BICC Energy Model and Failure in High Work Agreement Technology, Wrexham Voltage Cables. University of Wales, Bangor Further Development to the Sponsored Development BICC Energy Electrokinectic Endurance Work Agreement Technology, Wrexham Model. University of Wales, Bangor Further Development to the EKE Draft Extension Letter BICC Energy Model. Agreement Technology, Wrexham University of Wales, Bangor Electrokinetic Phenomena Sponsored Studentship BICC Energy (CASE PhD) Technology, Wrexham University of Wales, Bangor Scanning Probe Microscope Sponsored Development BICC Energy Investigation of Insulations Work Agreement Technology, Wrexham and Screens University of Wales, Bangor Improving Insulation/Semicon Sponsored Studentship BICC Energy Interface (CASE PhD) Technology, Wrexham University of Wales, Swansea Wire-Coating Die-Flow Sponsored Development BICC Energy Modelling. Work Agreement Technology, Wrexham Profs. K. Walters and A.R. Viscosity of Polymer Melts Sponsored Development BICC Energy Davies University of Wales, Work Agreement Technology, Wrexham Aberystwyth Lancaster University Studies of the Peroxide Sponsored Studentship BICC Energy Crosslinking Reaction in (CASE PhD) Technology, Wrexham Polyolefins Prepared by Metallocene Catalysis. Aberdeen University Phase Diagram & Processing Sponsored Studentship BICC Energy Studies on BiSCCO-2212 (CASE PhD) Technology, Wrexham University of Durham Fabrication of HTSC coils and Sponsored Studentship BICC Energy Tapes. (CASE PhD) Technology, Wrexham Southampton University Lectureship in Sponsored Development BICC Energy Institute of Cryogenics Superconductivity Work Agreement Technology, Wrexham Cranfield University Engineering and Management of Sponsored Studentship BICC Energy Manufacturing Systems (MSc) Technology, Wrexham
235 Cranfield University Cable Making Production Line - Sponsored Studentship BICC Energy Simulation Model. (MSc) Technology, Wrexham Cranfield University The Use of Information Systems Sponsored Studentship BICC Energy to Integrate Manufacturing (CASE PhD) Technology, Systems Wrexham Cranfield University Next Generation Manufacturing Sponsored Studentship BICC Energy Systems (EngD) Technology, Wrexham Cranfield University Transfer of Information Sponsored Studentship BICC Energy Systems Technology (EngD) Technology, Wrexham Liverpool University Multi-Agent Learning for Sponsored Studentship BICC Energy Monitoring and Control (CASE PhD) Technology, Wrexham University College, London. Mesoscopic Modelling of Sponsored Development BICC Energy Electrical Breakdown Work Agreement Technology, Wrexham Bristol University Concentration Gradient of Dust Sponsored Development BICC Energy Particles in Divergent Work Agreement Technology, Electric Fields. Wrexham CAPCIS Ltd. Corrosion of Submarine Cable Sponsored Development BICC Energy Installations Work Agreement Technology, Wrexham University of Southampton Space-Charge Measurement Sponsored Development BICC Energy Work Agreement Technology, Wrexham University of Reading Polymer Morphology & Sponsored Studentship BICC Energy Dielectric Breakdown (CASE PhD) Technology, Wrexham Leicester University Study into Polymeric DC Consultancy BICC Energy Insulation's (Fothergill) Technology, Wrexham Strathclyde University The Use of Gas Insulated Lines Sponsored Development BICC Energy in HV Transmission Systems Work Agreement Technology, Wrexham Loughborough University of M-TDSC Techniques for the Sponsored Development BICC Energy Technology Study of Filled Polymers Work Agreement Technology, Wrexham European Commission PROGNOSIS - Process Cost Sharing Contract BICC Energy Diagnostics for Plant Technology, Performance Enhancement Wrexham
236 University of Newcastle, etc. PROGNOSIS - Process Collaboration Agreement BICC Energy Diagnostics for Plant Technology, Performance Enhancement Wrexham European Commission SACPA - AC Losses in Actual Cost Contract BICC Energy Superconductors Technology, Wrexham University of Southampton, etc. SACPA - AC Losses in Collaboration Agreement BICC Energy Superconductors Technology, Wrexham University of Surrey, etc. Life-Cycle and Process Collaboration Agreement BICC Energy Optimisation Approach to Technology, Polymer Materials Selection Wrexham University of Surrey, etc. Life-Cycle and Process Actual Cost Contract BICC Energy Optimisation Approach to Technology, Polymer Materials Selection Wrexham DTI, UMIST, etc. Anisotropy Control with Actual Cost Contract BICC Energy Rotating Die Extrusion Technology, Wrexham DTI, UMIST, etc. Anisotropy Control with Collaboration Agreement BICC Energy Rotating Die Extrusion Technology, Wrexham Prof. R Scurlock, University Superconductivity Technology Consultancy Agreement BICC Energy of Southampton Review Technology, Wrexham JMU Services Ltd, for Technology Forecasting Sponsored Development BICC Energy Liverpool John Moores Work Agreement Technology, University Wrexham Philip Holroyd Technology Forecasting Consultancy Agreement BICC Energy Technology, Wrexham Borealis A/S Supply of HDPE and Material Supply BICC Energy semiconducting screens Agreement Technology, Wrexham IPEC Limited Ultrasonic Measurement of Sponsored Development BICC Cables Ltd Cable Insulations Work Agreement Erith Technology Centre ABAQUS Benelux BV Finite Element Modelling of Consultancy Agreement BICC Cables Ltd Sub-Sea Cables Erith Technology Centre
237 University of Lancaster Untitled Studentship Sponsored Studentship BICC Cables Ltd (A Ponsonby) (CASE PhD) Erith Technology Assignment and Centre Supplementary Agreement City University Computer Modelling of Power Sponsored Development BICC Cables Ltd Cables Work Agreement Erith Technology Centre University of Bristol Water Treeing Sponsored Development BICC Cables Ltd Work Agreement Erith Technology Centre Dr AS Clough Micro-PIXE Studies of Sponsored Development BICC Cables Ltd (University of Surrey) Polymeric Cables Work Agreement Erith Technology Centre King's College, London Water Treeing in Filled Sponsored Development BICC Cables Ltd Polymers Work Agreement Erith Technology Centre University of Genoa Electrical Treeing in EPR and Sponsored Development BICC Cables Ltd XLPE Compounds Work Agreement Erith Technology Centre Preformed Line Products Ltd BLX Fittings Joint Marketing BICC Components Agreement Ltd. Robert Cyril Lyon Cable Cleat Assignment and Revenue BICC Components Sharing Agreement Ltd. A T Group Agreement dated 11/8/97 BICC Cables Ltd Arthur Little Agreement dated 30/11/98 BICC Cables Ltd Geomica Ltd Agreement dated 2/7/98 BICC Cables Ltd Rockwell Automation Ltd Agreement dated 16/10/98 BICC Cables Ltd Siemens Agreement dated 6/6/97 BICC Cables Ltd
238 Eurotherm Process Automation Agreement dated 2/10/96 BICC Cables Ltd Christopher Wells & University Agreement dated 1/6/98 BICC Cables Ltd of Liverpool Informix Confidentiality BICC Cables Ltd Agreement Nokia-Maillefer Agreement dated 1/10/97 BICC Cables Ltd
239 PART H DETAILS OF MATERIAL LICENCES OF THIRD PARTY SOFTWARE TO WHICH THE GROUP COMPANIES OR THE BUSINESS SELLERS ARE A PARTY AND (IN THE CASE OF THE BUSINESS SELLERS) WHICH IS PRIMARILY OR EXCLUSIVELY USED IN THE OPERATIONS
- ------------------------------------------------------------------------------------------------------------------------------------ SUPPLIER SOFTWARE TYPE OF APPLICATION BUSINESS UNIT USING SOFTWARE - ------------------------------------------------------------------------------------------------------------------------------------ CPL Package Treasury System Energy Centre Hexagon Package Bank Payments - Reports Bank Accounts Energy Centre Rockliffe Chameleon Accounting Ledgers Energy Centre Hyperion Package Financial Consolidation Energy Centre PWA Foxpro Personnel Records System (PWA) Energy Centre Reuters Reuters3000 Reuters - On line Financial Information Energy Centre Workgroup Systems Quetzal Internal Call Management System BICC IS Baan Scopus Baan Call Management System BICC IS Forty-One Sage Accounts Package BICC Energy Technology MAX MAX 10 Business Information System ERITH Datastream MP2 Maintenance / Stores / Purchasing ERITH Radan Radraft CAD for Accessories Design ERITH Mitrefinch TMA Time and Attendance system used by 600 Employees ERITH MGB Ledgers Radius Nominal Ledger / Sales Ledger / Purchase Ledger / Asset ERITH Register SDRC Ideas Master Series Finite Element Modelling and Analysis ERITH HKS Abaqus Advanced Finite Element Package for Structural and ERITH Thermal Analysis CFX International CFX 4 / 5 Computational Fluid Dynamics ERITH
240
- ------------------------------------------------------------------------------------------------------------------------------------ SUPPLIER SOFTWARE TYPE OF APPLICATION BUSINESS UNIT USING SOFTWARE - ------------------------------------------------------------------------------------------------------------------------------------ Engineering Animation Vislab 3D Visualisation and Animation ERITH Intelligent Light Field View Computational Fluid Dynamics Post Processing ERITH Radan Radraft NT CAD for Works Engineers ERITH Real Time Documents Ltd Docusmart Export Documentation and invoicing ERITH Baan Baan ERP WREXHAM STG OPT Finite scheduler WREXHAM MerciaVision Mainsaver Maintenance management WREXHAM The CAD division AutoCad CAD WREXHAM D&H Marpacs (Databus) Production Control/MRP COMPONENTS Broadgate Ledgers (DB/C) Ledger COMPONENTS T&G CG Account System SPAIN META4 N4 Human Resources (Payroll) SPAIN Micro-strategy DSS-Agent Data warehouse SPAIN Slam Cerg-Finance Financial SPAIN Banking communication SSA BPCS Business planning and control system with the following PORTUGAL main modules:) TyG (Spain) CG/IFS Accounting package to generate the Management and Fiscal PORTUGAL. accounts Prologica IMMO/400 Fixed Assets accounting and control PORTUGAL.
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- ------------------------------------------------------------------------------------------------------------------------------------ SUPPLIER SOFTWARE TYPE OF APPLICATION BUSINESS UNIT USING SOFTWARE - ------------------------------------------------------------------------------------------------------------------------------------ SSA Iberica EDI To interchange data related to orders, despatch and PORTUGAL invoicing with telephone and energy utilities. Uses the standard EDIPAC. Fidia GEO Tendering ITALY Cybertec Cyberplan MRP and Scheduling ITALY Progres Iniziativa Silog Transportation ITALY Ibimec QMS Raw Material Quality Control ITALY Omniadata ODAMM Accounts Receivable ITALY Ceas Progress Raw materials and compounds ITALY Formula FA Fixed Assets ITALY Baan Baan IV Under Implementation ITALY Baan Baan IV NEW ZEALAND SAP R3 KKK Reuters Reuters Online Financial Data on-line to Reuters BICC ROD UNISYS Order Processing Sales Order Processing BICC ROD Scomagg Plant database Rod Plant SFDC Quality & Despatch BICC ROD MTAS PILOT Stores Engineering Stores Control BICC ROD
242
- ------------------------------------------------------------------------------------------------------------------------------------ SUPPLIER SOFTWARE TYPE OF APPLICATION BUSINESS UNIT USING SOFTWARE - ------------------------------------------------------------------------------------------------------------------------------------ CEGELEC Controls Alspa Process Control Application BICC ROD C80-35 & C90-70 NANO Tech. Furnace Control SCADA Adroit 3.1 - Furnace Control BICC ROD Manugistics StatGraphicsPlus for Windows Statistical Analyses BICC ROD MINITAB MINITAB Statistical Analysis Software BICC ROD ARCSERVE ARCSERVE Server Backup Software BICC ROD Megatech TAS Books Financial Accounting Software Package BICC ROD Avery Berkel Weighman for Windows Weighbridge Software BICC ROD Visual Business Tools Personnel Manager Personnel Records Database BICC ROD Smart Systems Time Director Time & Attendance Records BICC ROD DataMetrics File Express Interface Software for UNISYS to TAS Books BICC ROD DataMetrics Cadet T27 Terminal Emulation UNISYS emulation on Desktop PC's BICC ROD Software Hyperion Hyperion Enterprise v4.22 Financial Reports/Consolidation Package BICC ROD Midland Bank Hexagon Bank Account Enquiry Software BICC ROD Cristie SDB Backup v2.49 Local DOS Backup software for PC Users BICC ROD D&H Computers MARPACS Sales Order Processing BICC WIRE IEG Computing FACTORY Planning and Scheduling System BICC WIRE Shire Systems Ltd Planned Maintenance Preventative Planned Maintenance system BICC WIRE
243
- ------------------------------------------------------------------------------------------------------------------------------------ SUPPLIER SOFTWARE TYPE OF APPLICATION BUSINESS UNIT USING SOFTWARE - ------------------------------------------------------------------------------------------------------------------------------------ Shire Systems Ltd Stock systems Engineering Stores Module integrating with PPM system BICC WIRE at 5. above ISS, Manchester EDX Scanner Electron Microscope BICC WIRE ENTEK Vibration Analysis System BICC WIRE ARCSERVE ARCSERVE Server Backup Software via external Backup tape drive BICC WIRE Megatech TAS Books Financial Accounting Software Package BICC WIRE Visual Business Tools Personnel Manager Personnel Records Database BICC WIRE Smart Systems Time Director Time & Attendance Records BICC WIRE AutoCAD AutoCAD Computer Aided Drawing Package BICC WIRE LT MAX International MAX Business System PYROTENAX Unitend Time& Attendance Time & Attendance PYROTENAX Sitpro Spex V5 Export Shipment PYROTENAX Kewill Sytec EDI Electronic Data Interchange - Invoices / Sales Orders PYROTENAX Business Objects Business Objects Management Information System PYROTENAX DataStream CMMS Computerised Maintenance Management System PYROTENAX Mercia Software Logol Forecasting System PYROTENAX McGuffie Brunton Impact Award Integrated Business System THERMOHEAT Computer Advisory Service Triangle QA Quality System (Paperless) THERMOHEAT
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- ------------------------------------------------------------------------------------------------------------------------------------ SUPPLIER SOFTWARE TYPE OF APPLICATION BUSINESS UNIT USING SOFTWARE - ------------------------------------------------------------------------------------------------------------------------------------ ICL OMAC Manufacturing database, materials purchasing and LEIGH control, costing and stock control Mercia Vision Mainsaver Engineering stores, purchasing and planned maintenance LEIGH Sitpro SPEX Export shipping documentation LEIGH Business Objects Business Objects Management Information System LEIGH Baan Baan IV Under Implementation LEIGH Baan BaanIV Under implementation DUBAI Open Mind ? Tendering ASCOLI Progres Iniziativa Silog Transportations ASCOLI Omniadata ODAMM Accounts Receivable ASCOLI Ceas Progress Raw materials and compounds ASCOLI Formula FA Fixed Assets ASCOLI Baan Baan IV Under Implementation ASCOLI Kewill ZIMBABWE - ------------------------------------------------------------------------------------------------------------------------------------
245 SCHEDULE 16 ENVIRONMENT 1 DEFINITIONS For the purpose of this Schedule and Clause 8.8 of the Agreement, the following expressions shall have the following meanings: Agreed Proportion means that proportion of any Environmental Loss which the parties have agreed that the Vendor shall bear in paragraph 5.1 hereof. Environment means ecological systems including living organisms and the following media (alone or in combination); air (including the air within buildings and the air within other natural or man-made structures whether above or below ground); water (including water under or within land or in drains or sewers and coastal and inland waters); and land (including land under water); and in the case of man includes his property. Environmental Authority means any legal person or body of persons (including any government department or government agency or court or tribunal) having jurisdiction to determine any matter arising under Environmental Laws and/or relating to the Environment. Environmental Laws means all applicable laws (including, for the avoidance of doubt, common law), statutes, regulations, statutory guidance notes and final and binding court and other tribunal decisions of any relevant jurisdiction or any constituent part thereof (including, without limitation, the law of the European Union) in force in the relevant jurisdiction at Completion which relate to pollution or protection of the Environment or which relate to emissions, discharges, or threatened releases or escapes of Hazardous Substances into the Environment, or to the production, processing, distribution, management, use, treatm