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EXHIBIT 10.31
9 FEBRUARY 2000
SHARE PURCHASE AGREEMENT
BETWEEN
GENERAL CABLE CORPORATION
AND
PIRELLI CAVI E SISTEMI S.P.A.
RELATING TO THE ACQUISITION OF CERTAIN COMPANIES COMPRISED IN THE
ENERGY CABLES DIVISION OF GENERAL CABLE CORPORATION
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TABLE OF CONTENTS
PAGE
1 DEFINITIONS AND INTERPRETATION......................................................................1
2 CONDITIONS..........................................................................................8
3 SALE AND PURCHASE..................................................................................11
4 CONSIDERATION......................................................................................12
5 CLOSING AND SUBSEQUENT CLOSING.....................................................................15
6 PERIOD BEFORE CLOSING..............................................................................17
7 WARRANTIES.........................................................................................19
8 RESTRICTIONS ON THE VENDOR AND THE SHAREHOLDERS....................................................23
9 UNDERTAKINGS.......................................................................................24
10 INDEMNITY..........................................................................................27
11 TRANSITIONAL ARRANGEMENTS..........................................................................28
12 INTELLECTUAL PROPERTY..............................................................................29
13 BONDS AND GUARANTEES...............................................................................33
14 PENSIONS...........................................................................................33
15 TAXATION...........................................................................................33
16 CONFIDENTIALITY....................................................................................33
17 ASSIGNMENT.........................................................................................34
18 GENERAL............................................................................................34
19 NOTICES............................................................................................36
20 GOVERNING LAW AND JURISDICTION.....................................................................38
SCHEDULE 1 THE COMPANIES....................................................................................39
SCHEDULE 2 THE SUBSIDIARIES.................................................................................48
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THIS AGREEMENT is made on 9 February 2000 between the following parties:
(1) GENERAL CABLE CORPORATION, a company incorporated in Delaware, USA
whose principal place of business is at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (the "VENDOR"); and
(2) PIRELLI CAVI E SISTEMI S.P.A., a company incorporated in Italy whose
principal place of business is at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ (the
"PURCHASER")
WHEREAS
(A) The Vendor has agreed to sell (and to procure that the Shareholders
shall sell) and the Purchaser has agreed to purchase the Shares on the
terms and subject to the conditions of this Agreement.
(B) Details of the Companies are set out in Schedule 1.
IT IS AGREED as follows
1 DEFINITIONS AND INTERPRETATION
1.1 The Recitals and Schedules form part of this Agreement and shall have
the same force and effect as if set out in the body of this Agreement.
Any reference to this Agreement shall include the Recitals and
Schedules.
1.2 In this Agreement, the following words and expressions shall have the
following meanings:-
"ACCOUNTING PRINCIPLES" means the UK generally accepted accounting
principles which are set out in Schedule 8;
"THE AGREED FORM" means the form agreed between and initialled for the
purposes of identification by or on behalf of the Vendor and the
Purchaser;
"ASSETS" means all the property, rights and assets owned and/or used by
any of the Sale Group Companies exclusively or primarily in connection
with the Businesses to be sold pursuant to this Agreement or any Share
Transfer Agreement;
"BUSINESSES" means those businesses comprising the energy cable
operations (including low medium high voltage cable and industrial
cables including accessories, compound and copper rod production) of
the Vendor in the United Kingdom (other than the Excluded Businesses),
Italy, Zimbabwe, Angola, Mozambique, Malaysia, China, Hong Kong and
Singapore;
"BUSINESS DAY" means any other day than a Saturday, Sunday or any other
day which is a public holiday in England on which commercial banks are
open for business in London, England, Milan, Italy and New York City,
New York.
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"CLOSING" means closing of the sale and purchase of the Shares of the
UK Companies and BICC General CAVI Cavi SrL and of any other Shares the
sale and purchase of which is completed on the Closing Date pursuant to
Clause 2 in accordance with this Agreement;
"THE CLOSING DATE" means the date being the last day of the monthly
accounting period of the Vendor (an "ACCOUNTING PERIOD") in which the
conditions specified in Clause 2 are (or the last of them is) satisfied
or waived provided that (i) the Closing Date shall not be earlier than
30 April 2000 and (ii) if the Closing Date would fall on a date being
less than three Business Days prior to the last day of a relevant
Accounting Period, Closing shall take place on the last day of the next
Accounting Period;
"CLOSING FIXED ASSET VALUE" means the aggregate value at Closing of the
fixed assets of the Sale Group Companies as determined in accordance
with UK GAAP with the exclusions set forth in paragraphs A and B of the
Accounting Principles;
"CLOSING LIABILITIES" means the aggregate value at Closing of the
liabilities, provisions and debts of the Sale Group Companies as
determined in accordance with UK GAAP with the exclusions as set forth
in the Accounting Principles and listed in the paragraphs H to N
thereof including any adjustments for Third Party Interests and, for
the avoidance of doubt, the Sale Group Debt;
"THE CLOSING STATEMENT" means the statement agreed or determined in
accordance with Clause 4 and the Accounting Principles;
"CLOSING NET WORKING CAPITAL VALUE" means the aggregate value at
Closing of the net working capital of the Sale Group Companies as
determined in accordance with UK GAAP with the exclusions set forth in
the Accounting Principles and listed in paragraphs C, D, E, F and G
thereof;
"THE COMPANIES" means the companies listed in Schedule 1.
"THE CONSIDERATION" means the sum referred to in Clause 4.1, as
adjusted in accordance with Clause 4.2;
"THE DISCLOSURE LETTER" means the letter dated the date of this
Agreement from the Vendor to the Purchaser making certain disclosures
against the Warranties;
"EMPLOYEES" means the employees of all of the Sale Group Companies,
details of which are set out in Schedule 13.
"ENCUMBRANCE" means any interest or equity of any person (including any
right to acquire, option or right of pre-emption) or any mortgage,
charge, pledge, lien, assignment, hypothecation, security interest,
title retention or any other security agreement or arrangement;
"ENERGY FIELD" means the following fields of operation:
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- activities, including without limitation research, development, make,
have made, test, control, sell, import, purchase; - products,
including without limitation cables and cable accessories, parts
thereof, including materials (for example insulating materials,
fillers, conductors);
- services, including without limitation installation, maintenance,
fault detection, measurements, line control;
all for use with the transport and distribution of electric energy;
"ENVIRONMENTAL INDEMNITY" means the indemnity set out in Schedule 12 of
this Agreement;
"EXCLUDED BUSINESSES" means the cable businesses operated by ▇▇▇▇▇
Cable Limited, ▇▇▇▇▇ Cable Europe Limited and BICC General Pyrotenax
Cables Limited in the United Kingdom;
"THE EXECUTIVES" means the employees listed in Schedule 16;
"FACTORING AGREEMENT" means the agreement dated 25 November 1999
between Mediofactoring SpA and BICC General Ceat Cavi s.r.l. pursuant
to which BICC General CAVI Cavi S.r.l. has agreed to factor certain
trade debts due to it from Enel SpA;
"GLENCORE CREDIT TERMS" means the terms set out in a fax dated 22
December 1999 from Glencore to BICC General Cables UK Limited in
relation to the supply by Glencore of copper cathodes during 2000;
"GLENCORE" means Glencore UK Limited;
"GROUP COMPANY" means in relation to any company, any body corporate
which is from time to time a holding company of that company, a
subsidiary of that company or a subsidiary of a holding company of that
company;
"HITACHI" means Hitachi Cable Limited, a Japanese corporation
"THE HITACHI AGREEMENTS" means the technical collaboration agreements
dated 29th May 1991, 22nd December 1995 and 8th October 1997 in respect
of which Hitachi has provided know-how utilised by BICC General Cables
UK Limited in the operation of its works at Erith, Kent
"INTELLECTUAL PROPERTY RIGHTS" shall mean all world-wide registerable
or unregisterable rights including patents, applications for patents
and other patent rights, utility models, applications for utility
models, trademarks, trade names, company names, product names,
copyrights, (including any rights in computer software and
documentation therefor and the source codes), design rights, mask work
rights, know-how, trade secrets, data, information, inventions,
technology, processes, methods, experiences, formulas, findings and all
other intellectual property rights including know-how or any analogous
rights anywhere in the world;
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"INITIAL CONSIDERATION" means the sum referred to in Clause 4.1;
"ISSUED 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;
"MAJORITY OWNED SALE GROUP COMPANIES" means any Sale 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;
"MINORITY SALE GROUP COMPANIES" means the Sale Group Companies other
than the Relevant Sale Group Companies;
"OVERSEAS COMPANIES" means BICC General Cables Asia Pacific Pte Ltd,
BICC General Baosheng Cable Co Ltd, BICC Energy Cables Pte Limited,
BICC Malaysia Sdn Bhd, BICC Cables Malaysia Pte Ltd, BICC General
Cables Malaysia Sdn Bhd, BICC China Cables Limited, BICC CAFCA Ltd,
Celmoque-Fabrica Nacional de Contudores Electricos SARL, BICC (Central
Africa) (Private) Ltd, Zimbabwe Cables (PTE) Ltd, ▇▇▇▇▇▇-Fabrica de
Contudores Electricos de Angola SARL and Transpower Cables Pte Limited;
"THE PARTIES" means the parties to this Agreement;
"THE PROPERTIES" means the freehold and leasehold properties of each of
the Companies, details of which are given in Schedule 5;
"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;
"PURCHASER'S ACCOUNTANTS" means KPMG;
"PURCHASER'S GROUP" means the Purchaser and any Group Company of the
Purchaser (including, with effect from Closing, the Sale Group
Companies which have been acquired by the Purchaser with effect from
such Closing);
"PURCHASER'S LAWYERS" means Weil, Gotshal & ▇▇▇▇▇▇ of ▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"RELEVANT PURCHASER" means the Purchaser and any member of the
Purchaser's Group nominated prior to Closing by the Purchaser as the
purchaser of the Shares in any of the Companies;
"RELEVANT SALE GROUP COMPANY" means any Wholly Owned Sale Group Company
or Majority Owned Sale Group Company;
"RELEVANT SALE 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 Sale Group Company as at the close of business on the
Closing Date;
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"SALE GROUP" or "SALE GROUP COMPANIES" means each of the Companies and
the Subsidiaries;
"SALE GROUP COMPANIES BALANCE SHEET" means the pro forma aggregated
balance sheet of the Sale Group Companies set out in Schedule 17 and
prepared by the Vendor showing the assets and liabilities of the Sale
Group Companies as at 30 November 1999 after interelimination between
the Sale Group Companies and after adjustment for Third Party
Interests;
"SALE GROUP DEBT" means all amounts due and payable on the Closing Date
from any of the Sale Group Companies to any member of the Vendor's
Group (other than trade debts arising in the ordinary course) the
amount of which shall be certified by the Vendor to the Purchaser not
less than three Business Days prior to Closing;
"SHAREHOLDERS" means in respect of each Company, the shareholder
referred to in paragraph 9 of each part of Schedule 1;
"THE SHARES" means the shares, quotas or other securities in the
capital of each of the Companies referred to in paragraph 9 of each
part of Schedule 1;
"SHARE TRANSFER AGREEMENTS" means the agreements (if any) substantially
in the Agreed Form required in order to effect the sale and purchase of
Shares outside the United Kingdom in the jurisdictions referred to
therein to be entered into between the relevant Shareholder and the
Relevant Purchaser on or following Closing;
"SUBSEQUENT CLOSING" means, in relation to the Shares of any Overseas
Company the sale and purchase of which is not completed on or with
effect from the Closing Date, each Closing of the sale and purchase of
such Shares pursuant to Clause 2.6 (to the extent applicable);
"SUBSEQUENT CLOSING DATE" means the date on which any Subsequent
Closing takes place;
"THE SUBSIDIARIES" means the subsidiaries of the Companies, details of
which are set out in Schedule 2;
"TAX" or "TAXATION" shall have the meaning ascribed thereto in the Tax
Deed ;
"THE TAX DEED " means the deed in the Agreed Form to be entered into
between the Vendor and the Purchaser;
"TERRESTRIAL FIELD" means the part of the Energy Field which is
associated with the transport and distribution of electric energy out
of water (including aerial and underground);
"THIRD PARTY INTERESTS" means the proportionate share of ownership in
any Sale Group Company owned by a party other than a member of the
Vendor's Group;
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"UNDERWATER FIELD" means the part of the Energy Field which is
associated with the transport and distribution of electric energy
underwater;
"UK COMPANIES" means BICC General UK Cables Limited, BICC General
Industrial Cables Limited, BICC General Supertension Cables (1980) Ltd
and BICC General Rod Rollers Limited
"UK EMPLOYEES" means Employees of the UK Companies.
"US$" or "US DOLLARS" means the lawful currency for the time being of
the United States of America;
"THE VENDOR'S ACCOUNTANTS" means Deloitte & Touche;
"VENDOR'S GROUP" means the Vendor and any Group Company of the Vendor
from time to time (other than the Sale Group Companies except, on or
after Closing, those Sale Group Companies which are not acquired by the
Purchaser at or with effect from such Closing);
"VENDOR GROUP DEBT" means all amounts due and payable on the Closing
Date from any member of the Vendor's Group to any Sale Group Company
the amount of which shall be certified by the Vendor to the Purchaser
not less for seven days before Closing;
"VENDOR'S LAWYERS" means ▇▇▇▇▇▇ ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"WHOLLY OWNED SALE GROUP COMPANIES" means the Sale Group Companies
which are wholly owned directly or indirectly by the Vendor;
"THE WARRANTIES" means the representations, warranties and undertakings
set out in Schedule 4 and paragraph 2 of Schedule 12;
"WARRANTY CLAIM" means a claim by the Purchaser pursuant to the
provisions of Clause 7.1.
1.3 In this Agreement (unless the context requires otherwise):-
1.3.1 a "SUBSIDIARY UNDERTAKING" or "PARENT UNDERTAKING" is to be
construed in accordance with section 258 of the Companies ▇▇▇
▇▇▇▇ and a "SUBSIDIARY" or "HOLDING COMPANY" is to be
construed in accordance with section 736 of the Companies ▇▇▇
▇▇▇▇;
1.3.2 any reference to any statute or statutory provision includes a
reference to any subordinate legislation made under that
statute or statutory provision before the date of this
Agreement, to any modification, re-enactment or extension of
that statute or statutory provision made before that date and
to any former statute or statutory provision which it
consolidated or re-enacted before that date;
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1.3.3 any gender includes a reference to the other genders;
1.3.4 the singular includes a reference to the plural and vice
versa;
1.3.5 any reference to a Recital, Clause or Schedule is to a
Recital, Clause or Schedule (as the case may be) of or to this
Agreement;
1.3.6 "directly or indirectly" means (without limitation) either
alone or jointly with any other person, firm or body corporate
and whether on his own account or in partnership with another
or others or as the holder of any interest in or as officer,
employee or agent of or consultant to any other person, firm
or body corporate; and
1.4 The headings in this Agreement do not form part of and shall not affect
the interpretation of this Agreement or any part of it.
2 CONDITIONS
2.1 Closing shall be conditional upon:-
2.1.1 the European Commission either:
(a) indicating that the sale and purchase of all or any
of the Shares (the "TRANSACTION") does not give rise
to a concentration falling within the scope of
Council Regulation (EEC) 4064/89 concerning the
control of concentrations between undertakings as
amended by Council Regulation (EC) No 1310/97 (the
"REGULATION"); or
(b) the European Commission issuing a decision, pursuant
to Article 6(1)(b) of the Regulation, declaring the
Transaction compatible with the common market without
imposing any conditions or obligations that are not
on terms reasonably satisfactory to all the parties
or the period laid down by Article 10(1) for a
decision under Article 6(1)(b) having elapsed without
a decision having been taken;
2.1.2 on the European Commission, in the event that a request has
been made by a Member State under Article 9(2) of the
Regulation, indicating that it does not intend to refer the
Transaction or any part of the Transaction to a competent
authority of any Member State;
2.1.3 on no indication having been made that a Member State may take
appropriate measures to protect legitimate interests pursuant
to Article 21(3) of the Regulation in relation to the
Transaction or any aspect of the Transaction and
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on no Member State taking any measures to protect legitimate
interests pursuant to Article 21(3) of the Regulation;
2.1.4 if the European Commission either (i) decides to initiate
proceedings under Article 6(1)(c) of the Regulation in
relation to the whole or part of the Transaction or (ii)
issues a decision, pursuant to Article 9(1) of the Regulation,
referring the whole or any part of the Transaction to the
competent authorities of any Member State concerned and the
Vendor agrees to continue the Transaction, the Purchaser shall
waive condition 2.1.1 and Closing shall be conditional on:
(a) the European Commission issuing a decision, pursuant
to Article 8(2) of the Regulation, declaring the
whole or all those parts of the Transaction in
respect of which the proceedings were initiated
compatible with the common market without imposing
any conditions or obligations that are not on terms
reasonably satisfactory to all the parties; and
(b) the competent authority of any Member State to whom
the European Commission has referred the whole or any
part of the Transaction granting a clearance in
respect of the whole or those parts of the
Transaction referred to it without imposing any
conditions or obligations that are not on terms
reasonably satisfactory to all the parties;
2.1.5 the Vendor procuring, at its cost, (i) written confirmation
from Hitachi, in a form reasonably acceptable to the
Purchaser, that Hitachi will not exercise any right which it
may have to terminate the Hitachi Agreements as a consequence
of the acquisition by the Purchaser of BICC General Cables UK
Limited (and that Hitachi has no objection to the purchase by
the Purchaser of the Shares of BICC General Cables UK Limited)
(ii) the execution by Hitachi of assignments of the benefit of
such of the Hitachi Agreements as are not in the name of BICC
General Cables UK Limited to BICC General UK Cables Limited;
2.1.6 on the Purchaser having not exercised its right to terminate
the Agreement in accordance with either Clause 7.4 or Clause
7.5.
2.2 Notwithstanding Clause 2.1 the Purchaser shall be entitled by notice in
writing given to the Vendor to waive (to such extent as it may think
fit) compliance with any of the conditions in Clause 2.1.
2.3 The Parties shall respectively use all reasonable endeavours to procure
that the conditions stated in Clause 2.1 are fulfilled as soon as
practicable and in any event before 31 August 2000. If, at any time,
the Vendor or the Purchaser becomes aware of a fact or
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circumstance that might prevent a condition being satisfied, it shall
immediately inform the other Party.
2.4 The Purchaser and the Vendor shall keep each other informed at all
times of any dealings with any government, governmental, trade agency
or regulatory authority in relation to the proposed acquisition and
shall co-operate in any such dealings and all requests and enquiries
from any such body shall promptly be dealt with by the Purchaser and
the Vendor in consultation with each other.
2.5 If any of the conditions set out in Clause 2.1 (to the extent it has
not been waived pursuant to Clause 2.2) shall not have been satisfied
by 31 August 2000, this Agreement (except for the provisions of this
Clause and of Clauses 1 (definitions), 16 (confidentiality), 18.4
(costs), 19 (notices) and 20 (governing law)) shall be null and void
and of no further effect and the Parties shall be released and
discharged from their respective obligations under this Agreement.
2.6 Closing of the sale and purchase of the Shares in any Overseas Company
shall be conditional upon:
2.6.1 in respect of the sale and purchase of the Shares of BICC
CAFCA Limited, 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
pursuant to the Exchange Control (General) Order, 1996 and
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;
2.6.2 in respect of the sale and purchase of Shares of BICC Cables
Asia-Pacific Pte. Ltd receipt by the Purchaser of a waiver or
an appropriate release, in a form reasonably satisfactory to
the Purchaser from Jiangsu Baoshang Group Co. Ltd. in respect
of its right of termination for change of control pursuant to
the Equity Joint Venture Contract for BICC General Baoshang
Cable Co. Ltd. dated 28th July, 1999 between BICC Cables
Asia-Pacific Pte. Ltd and Jiangsu Baoshang Group Co. Ltd;
2.6.3 the granting in terms reasonably satisfactory to the Purchaser
of any other consents, approvals, authorisations or clearances
which are required for the transfer of the Shares of the
relevant Overseas Company from any government, governmental or
regulatory bodies, agencies or authorities or any third party,
in any of the jurisdictions in which the relevant Overseas
Company is incorporated or in respect of which a subsidiary of
such Overseas Company is incorporated provided however, that
any such condition shall only apply if
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notified by the Purchaser to the Vendor within 30 days of the
date of this Agreement;
2.7 The Vendor and the Purchaser each undertakes to the other that it shall
use reasonable endeavours to procure that the conditions set out in
Clause 2.6 are satisfied as soon as reasonably practicable after the
date hereof and in any event prior to the date being 12 months after
the Closing Date (the "END DATE").
2.8 In the event that the condition set out in Clause 2.6.2 has not been
satisfied on or before the End Date the Vendor shall procure that BICC
General Cables Asia-Pacific Pte Ltd. transfers the whole of its
shareholding in the capital of BICC General Baosheng Cable Co. Ltd (the
"CHINA VENTURE") to another member of the Vendor's Group in which case
Clause 8.1.3 of this Agreement shall be of no further effect.
2.9 Closing shall take place in accordance with Clause 5 notwithstanding
that, on the Closing Date, any of the conditions set out in Clause 2.6
shall not have been satisfied.
3 SALE AND PURCHASE
3.1 The Vendor shall sell (and procure that each Shareholder shall sell)
with full title guarantee free from all liens, charges, encumbrances
and any other third party rights and the Purchaser shall purchase (and
procure that each of the Relevant Purchasers shall purchase) the Shares
with effect from and including the Closing Date or the Subsequent
Closing Date (as the case may be) to the intent that as from that date
all rights and advantages accruing to the Shares, including any
dividends or distributions declared or paid on the Shares after that
date, shall belong to the Purchaser.
4 CONSIDERATION
4.1 The Consideration payable for the Shares shall be the sum of US
$215,600,000 (the "INITIAL CONSIDERATION") as adjusted pursuant to
Clause 4.2. The consideration for the Shares has been calculated by
reference to the Sale Group Companies Balance Sheet which demonstrate,
inter alia, that the Sale Group Companies had on 30th November 1999 net
working capital of US $186,400,000.
4.2 The Initial Consideration shall be adjusted as follows:-
4.2.1 there shall be added or, as the case may be, deducted the
amount by which the Closing Net Working Capital shall exceed
or be less than US $186,400,000. The maximum amount which
shall be added to the Initial Consideration pursuant to this
paragraph (a) shall be:
(a) US $4,000,000; and
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(b) if directly as a result of the announcement of the
execution of this Agreement the Factoring Agreement
shall be terminated prior to Closing, US $15,000,000
provided such sum directly results from such
termination; and/or
(c) if directly as a result of the announcement of the
execution of this Agreement the Glencore Credit Terms
shall be withdrawn prior to Closing, US $13,000,000
provided such sum directly results from such
withdrawal;
4.2.2 there shall be added or, as the case may be, deducted the
amount by which the Closing Fixed Asset Value shall exceed or
be less than US $240,300,000. The maximum amount which shall
be added to the Initial Consideration pursuant to this
paragraph 4.2.2 shall be US $6,700,000; and
4.2.3 there shall be added or, as the case may be, deducted the
amount by which the Closing Liabilities are less than, or as
the case may be, greater than US $55,800,000.
4.3 On Closing the Purchaser shall pay to the Vendor the sum of US
$193,000,000 on account of the Consideration, less the amount of the
Sale Group Debt, and shall procure the repayment by the Sale Group
Companies of the Sale Group Debt. The balance of the Consideration (if
any) shall be payable within 3 Business Days following final agreement
or determination of the Closing Statement in accordance with the
following provisions of this Clause 4. Should Subsequent Closing not
have occurred in respect of the Shares of an Overseas Company on the
date of final agreement or determination of the Closing Statement then
the Purchaser shall withhold from the payment of the balance of the
Consideration the amount apportioned to such Overseas Company pursuant
to Clause 4.4 (the "RETAINED SUM") as adjusted by the Closing
Statement.
4.4 The Consideration shall be apportioned between the Sale Group Companies
in the manner to be agreed in good faith between the Purchaser and the
Vendor prior to Closing but the Purchaser shall not be concerned with
such division.
4.5 Any amount paid in respect of a breach of any of the Warranties, the
indemnity set out in Clause 10, the Environmental Indemnity or the Tax
Deed shall be deemed to give rise to a corresponding reduction in the
Consideration.
4.6 All payments required to be made under this Agreement or any Share
Transfer Agreement shall be made by telegraphic transfer in immediately
available funds in US dollars and to such account with such bank as the
payee shall nominate by written notice to the payer not less than 3
Business Days prior to the date of payment.
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4.7 The Vendor shall procure that, as soon as reasonably practicable after
Closing and in any event within 45 days of Closing, the Vendor shall
prepare and submit to the Purchaser and the Purchaser's Accountants a
draft aggregated balance sheet of the Sale Group Companies as at
Closing ("THE DRAFT STATEMENT"). The Purchaser shall provide full
access to the Vendor to the relevant books and records of the Sale
Group Companies as the Vendor may reasonable require in order to
prepare the Draft Statement. The Draft Statement shall be prepared in
accordance with the Accounting Principles and shall give a figure for
the Closing Net Fixed Asset Value, the Closing Net Working Capital
Value and the Closing Liabilities.
4.8 The Purchaser shall procure that, within 45 days after receipt of the
Draft Statement, the Purchaser's Accountants shall give written notice
to the Vendor stating whether or not they propose any amendments to the
Draft Statement. The Vendor shall procure that the Purchaser's
Accountants (and any Independent Accountant appointed pursuant to
Clause 4.11) are given all such assistance and access to all such
information as they may reasonably require in order to enable them to
reach their decision.
4.9 If the Purchaser's Accountants give notice that they have no proposed
amendments to the Draft Statement, then the Draft Statement shall
constitute the Closing Statement for the purposes of this Agreement. If
they give notice that they do have proposed amendments to the Draft
Statement, they shall within such notice inform the Vendor and the
Purchaser of their proposed amendments and the Vendor and the Purchaser
shall, within the period of 30 days after receipt of such notice, seek
to agree the proposed amendments.
4.10 If the Vendor and Purchaser agree the amendments within the 30 day
period referred to in Clause 4.9, the Draft Statement as so amended
shall constitute the Closing Statement.
4.11 In the event of any dispute between the Vendor and the Purchaser as to
any amendment to the Draft Statement proposed pursuant to Clause 4.8
remaining unresolved at the expiry of the period of 30 days referred to
in Clause 4.8, the matter or matters in dispute (but no others) shall
be referred to an independent firm of chartered accountants with an
international reputation agreed by the Vendor and the Purchaser within
5 Business Days of the end of such 30 day period or, in the event of a
failure to agree such firm within 15 business days, by an independent
firm of chartered accountants with an international reputation
appointed by the President for the time being of the Institute of
Chartered Accountants in England and Wales on the application of either
the Vendor or the Purchaser ("THE INDEPENDENT ACCOUNTANTS"). Such
Independent Accountants shall determine the matter in dispute on the
following basis:
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4.11.1 the Independent Accountants shall be instructed to notify the
Vendor and the Purchaser in writing of their determination of
any such matter within 30 days of such referral;
4.11.2 the Vendor and the Purchaser and their respective accountants
shall be entitled to make written submissions to the
Independent Accountants, but subject thereto the Independent
Accountants shall have power to determine the procedure to be
followed in relation to their determination;
4.11.3 the fees of the Independent Accountants shall be paid by the
Vendor and/or the Purchaser in the proportions determined by
the Independent Accountants;
4.11.4 any firm appointed under this Clause shall act as experts and
not as arbitrators and their determination shall be binding on
the Parties.
4.12 Upon determination of the matter or matters in dispute by the
Independent Accountants, the Draft Statement, incorporating the
amendments so determined together with any amendment agreed pursuant to
Clause 4.10 shall constitute the Closing Statement.
4.13 The Purchaser agrees, following Closing, to use its reasonable
endeavours to collect all book debts due to the Sale Group Companies at
Closing ("REASONABLE ENDEAVOURS" for this purpose to exclude the issue
and conduct of proceedings for the recovery of any debt which remains
unpaid). If notwithstanding the reasonable endeavours of the Purchaser
pursuant hereto any book debt shall not be recovered (and, as a
consequence the Vendor shall suffer a claim in respect thereof under
this Agreement in respect of which the Vendor makes payment to the
Purchaser) the Purchaser shall, at the request of the Vendor, assign
such book debt to the Vendor for US$1.
4.14 The Purchaser agrees, following Closing to sell, utilise or otherwise
dispose of the stock of the Sale Group Companies at Closing at the best
price obtainable therefor. If any stock shall remain unsold 12 months
from Closing which causes the Vendor to suffer a claim in respect of
which the Vendor makes payment to the Purchaser under this Agreement
the Purchaser shall, at the request of the Vendor, transfer such stock
to the Vendor for US$1.
5 CLOSING AND SUBSEQUENT CLOSING
5.1 Closing shall take place on the Closing Date at the offices of the
Purchaser's Lawyers (or at such other place as the Parties may agree)
when:-
5.1.1 the Vendor shall deliver to the Purchaser, or procure the
delivery to the Purchaser of, the documents and other items
referred to in Schedule 3;
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5.1.2 the Vendor and the Purchaser shall jointly procure that there
shall be held a meeting of the Board of Directors of each of
the Companies to approve the transfer of the Shares;
5.1.3 the Purchaser shall pay the sum of US $193,000,000 less the
Sale Group Debt and less the Retained Sum (if any) to the
Vendor, or as the Vendor may direct in writing;
5.1.4 the Purchaser shall and shall procure that the Sale Group
Companies shall, repay the Sale Group Debt in full; and
5.1.5 the Vendor shall procure that each relevant member of the
Vendor's Group shall repay the Vendor Group Debt in full.
5.2 If the Vendor shall fail or be unable to comply with any of its
obligations under Clause 5.1 on the Closing Date the Purchaser may:
5.2.1 defer Closing to a date not more than 28 days after that date
(in which case the provisions of this Clause 5.2 shall apply
to Closing as so deferred); or
5.2.2 proceed to Closing so far as practicable but without prejudice
to the Purchaser's rights (whether under this Agreement
generally or under this clause) to the extent that the Vendor
shall not have complied with its obligations thereunder; or
5.2.3 (save where the Purchaser, considering in good faith the
materiality or otherwise of the breach, is of the opinion that
the breach is immaterial) treat such failure or inability to
comply as a repudiatory breach of this Agreement, acceptance
of which shall discharge the Purchaser from its undischarged
obligations under this Agreement (without prejudice to any
other remedy which the Purchaser may have, whether in damages
or otherwise).
5.3 Subsequent Closings of the Shares of the relevant Overseas Company
referred to in Clause 2.6 shall (provided that Closing shall already
have occurred pursuant to Clause 5.1) take place at the offices of the
Purchaser's Lawyers or such other location as may be agreed five
Business Days following satisfaction of the condition(s) applicable to
the relevant Overseas Company.
5.4 At any Subsequent Closing:
5.4.1 the Vendor shall procure that those matters referred to in
Clause 5.1 and which relate to the relevant Overseas Company
are complied with;
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5.4.2 the Purchaser shall pay the Retained Sum as calculated in
accordance with Clause 4.4 in respect of the relevant Overseas
Company or Companies subject to the parties reapplying the
provisions of Clause 4 in respect of the relevant Overseas
Company or Companies. In the event that a transfer of the
China Venture has been made pursuant to Clause 2.8 the
Purchaser shall retain from the Retained Sum an amount equal
to the proportionate part of the consideration attributable to
the China Venture as established by the Closing Statement.
6 PERIOD BEFORE CLOSING
6.1 The Vendor undertakes to and covenants with the Purchaser that it will
procure that between the date of this Agreement and Closing:-
6.1.1 no increase shall be made in the authorised, allotted or
issued share capitals of any of the Relevant Sale Group
Companies;
6.1.2 no option shall be offered or granted by any of the Relevant
Sale Group Companies over the whole or any part of their
respective share capitals, whether issued or unissued; and
6.1.3 no dividends or other distributions shall be declared, made or
paid by any of the Relevant Sale Group Companies.
6.2 The Vendor further undertakes to and covenants with the Purchaser that
it will procure that between the date of this Agreement and Closing
(save with the previous written consent of the Purchaser not to be
unreasonably withheld or delayed):-
6.2.1 the business of each of the Relevant Sale Group Companies
shall be carried on in the ordinary and usual course and so as
to maintain the same as a going concern and with a view to
profit;
6.2.2 none of the Sale Group Companies:-
(a) alter or agree to alter or terminate or agree to
terminate any agreement to which it is a party
otherwise than in the ordinary course of business or
enter or agree to enter into any unusual or abnormal
contract or commitment;
(b) incur any capital expenditure or any material capital
commitment not already contractually committed or
which is not set out expressly in Schedule 14 or save
for disposals in the ordinary course of business
dispose of or realise any material capital asset or
any interest in any such asset which in any event may
not amount to more than US$100,000 for a single item;
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(c) create or agree to create any Encumbrance over all or
any of its assets (other than liens arising in the
ordinary course of business) or redeem or agree to
redeem any existing security or give or agree to give
any guarantee or indemnity except in the ordinary
course of business;
(d) alter or agree to alter the terms of any existing
borrowing facilities or arrange any additional
borrowing facilities;
(e) increase or agree to increase the remuneration
(including, without limitation, pension
contributions, bonuses, commissions and benefits in
kind) of any director or employee beyond the official
rate of inflation of the country in which such
director or employee works or provide or agree to
provide any gratuitous payment or benefit to any
director or employee or any of his dependants and no
employee having an annual salary in excess of
US$50,000 (or the local equivalent thereof) shall be
engaged or dismissed or have his terms of employment
altered or to permit any employee of the Vendors
Group who is not an Employee to transfer his
employment to a Sale Group Company.
6.3 The Vendor shall use its reasonable endeavours to ensure that prior to
the Closing:
6.3.1 the Factoring Agreement continues in accordance with its terms
and is not terminated as a result of any action taken by a
member of the Vendor's Group; and
6.3.2 the Glencore Credit Terms shall not be withdrawn.
6.4 In the event that an Executive gives notice of termination of his
employment contract prior to Closing the Vendor shall as soon as
practicable give the Purchaser notice of such termination and shall
permit the Purchaser to have full access to such Executive in order to
discuss his resignation. The Vendor shall not terminate the contract of
employment of any Executive without cause during the period between
signing and Closing or where relevant Subsequent Closing.
6.5 Subject to the provisions of Clause 16, the Vendor shall, and shall
procure that the officers and employees of and the professional
advisers to each of the Relevant Sale Group Companies shall, between
the date of this Agreement and Closing, at the request of the Purchaser
supply the Purchaser and/or its professional advisers with such
information concerning the Relevant Sale Group Companies as the
Purchaser or its professional advisers may reasonably require in order
to carry out full due diligence (including for the purposes of an
environmental phase I investigation and occupational noise assessments)
in respect of the Sale Group Companies. Subject to prior written
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notice the Vendor shall arrange for the Purchaser's representatives to
attend the Premises of each Sale Group Company and to meet with
selected employees of each Sale Group Company. It is agreed that (i)
the Purchaser shall make all requests for any such information and
access in writing to either ▇. ▇▇▇▇▇▇ or ▇. ▇▇▇▇▇ of the Vendor and
(ii) the provisions of this Clause shall not require the Vendor to
supply the Purchaser with information including, without limitation,
copies of sales contracts which contain information which in the
opinion of the Vendor would permit the Purchaser to gain access to
commercially sensitive information. In the period from satisfaction of
the condition set out in Clause 2.1 until Closing the Purchaser shall
provide the Vendor with all information in respect of the Sale Group
Companies requested by the Purchaser.
7 WARRANTIES
7.1 The Vendor (on behalf of itself and each of the Shareholders)
represents to the Purchaser that each of the Warranties:-
7.1.1 is true and accurate in all respects and is not misleading at
the date of this Agreement; and
7.1.2 shall be deemed to be repeated at Closing and on any
Subsequent Closing in respect of the relevant Overseas Company
as if they had been entered into afresh at Closing or at
Subsequent Closing in relation to the relevant Overseas
Company by reference to the facts and circumstances then
existing.
7.2 The Warranties shall not in any respect be extinguished or affected by
Closing.
7.3 The Vendor shall procure that neither the Vendor nor any of the
Shareholders shall do or permit or procure any act or omission before
Closing or where relevant Subsequent Closing which would constitute a
breach of any of the Warranties if they were given at Closing or where
relevant Subsequent Closing or which would make any of the Warranties
inaccurate or misleading in any material respect if they were so given
and undertakes to the Purchaser that if, between the date of this
Agreement and Closing or Subsequent Closing where relevant, any event
(including for the avoidance of doubt any omission) occurs which
results, or which may result, in any of the Warranties being
unfulfilled, untrue or inaccurate at Closing or Subsequent Closing
where relevant then it will immediately give the Purchaser written
notice of that event and its consequences and provide the Purchaser
with all information that the Purchaser requests with regard to the
event and its consequences that the Purchaser requires in order for the
Purchaser to assess whether it will serve a notice to terminate
pursuant to Clauses 7.5.
7.4 If, between the date of this Agreement and Closing, any fire,
earthquake, flood, war, riot, malicious damage, compliance with a law
or governmental order, rule, regulation or direction, accident,
breakdown of plant or machinery, storm, strike, lock-out, labour
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dispute or act of God or other calamity ("AN EVENT") shall occur (other
than an event constituting or giving rise to a breach of any of the
Warranties) then the Vendor will give the Purchaser written notice of
that Event and its consequences and will provide the Purchaser with all
information that the Purchaser requests with regard to the Event that
the Purchaser requires in order for the Purchaser to assess the
financial impact of the Event.
7.5 If, before Closing, the Purchaser alleges that
7.5.1 any of the Warranties was untrue or inaccurate or misleading
as at the date of this Agreement or that such Warranty is
likely to be untrue or inaccurate on repetition of such
Warranty and/or that a claim may be made in respect of the
Environmental Indemnity or pursuant to Clause 10 and/or that
an Event had occurred; and
7.5.2 the matter giving rise to such breach of Warranty or a claim
under the Environmental Indemnity and/or pursuant to Clause 10
and/or the Event will lead to a financial impact on the
Consideration representing in excess of US $47,000,000
provided that in calculating whether or not the amount of US
$47,000,000 has been exceeded neither Clause 7.10 nor Schedule
9 shall apply in respect of any alleged breach of Warranty
referred to in Clause 7.5.1 and Schedule 9 shall not apply to
any claim for indemnity
the Purchaser shall (subject to Clause 7.6) be entitled by notice in
writing (setting out the basis of such allegation) given to the Vendor
before Closing to terminate this Agreement. Termination shall be the
only right or remedy available to the Purchaser in respect of such
event and the Purchaser shall have no right to damages or compensation
in respect thereof.
7.6 The notice given by the Purchaser under Clause 7.5 shall not constitute
a notice to terminate this Agreement unless within 14 days after
receipt of the Purchaser's notice pursuant to Clause 7.5 the Vendor by
written notice to the Purchaser confirms that it disagrees with the
Purchaser's right of termination in which case the right to terminate
shall be subject to the Purchaser obtaining a written opinion from a
queen's counsel instructed by the Vendor and the Purchaser (or in the
absence of agreement within seven days of the date of the Purchaser's
notice appointed by the President of the Law Society at the instance of
either party) that the Purchaser's allegation (and its estimation of
the financial consequences thereof) is reasonable.
7.7 If the Purchaser serves notice on the Vendor pursuant to Clause 7.5, it
shall forthwith on request by the Vendor provide to it all appropriate
documentation and information on which it relies to substantiate or
support its assertion and to enable the Purchaser to give
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instructions to counsel. The Vendor and the Purchaser agree to
co-operate together and take all reasonable steps to procure that
counsel is properly instructed and is requested to give his opinion as
soon as possible. The Purchaser shall prepare the instructions to
counsel and shall incorporate any reasonable comments or
representations made by the Vendor thereon. Subject as hereinafter
provided, pending either the failure of the Vendor to serve a notice
pursuant to Clause 7.6 or the opinion of counsel referred to in Clause
7.6 the Purchaser shall not be obliged to complete this Agreement,
provided that if no written opinion of counsel in the terms of Clause
7.6. above is obtained from the counsel the right of termination
asserted by the Purchaser shall be conclusively agreed not to have
occurred.
7.8 The Vendor acknowledges that the Purchaser has entered into this
Agreement in reliance on representations in the terms of the Warranties
made by the Vendor with the intention of inducing the Purchaser to
enter into this Agreement and that accordingly the Purchaser has been
induced by those representations to enter into this Agreement.
7.9 The Vendor undertakes to the Purchaser that, in the event of any claim
being made against it for breach of the Warranties, it will not make
any claim against any of the Sale Group Companies or against any
director, officer or employee of any of the Sale Group Companies on
which or on whom it may have relied before agreeing to any terms of
this Agreement or authorising any statement in the Disclosure Letter.
7.10 The Warranties:-
7.10.1 are qualified by reference to those matters fairly disclosed
in the Disclosure Letter. In particular, but without
limitation, the rights and remedies of the Purchaser in
respect of the Warranties shall not be affected by any
investigation made by or on behalf of the Purchaser into the
affairs of the Sale Group Companies;
7.10.2 are separate and independent and, unless expressly provided to
the contrary, are not limited or restricted by reference to or
inference from the terms of any other provision of this
Agreement or any other Warranty;
7.10.3 where qualified by the expression "so far as the Vendor is
aware" or some similar reference to the knowledge,
information, belief or awareness of the Vendor, such
expression shall be deemed to refer to the knowledge of the
Vendor having made due and careful enquiry of those persons
listed in Schedule 15; and
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7.10.4 apply to each of the Subsidiaries as well as to the Companies
as if the word "Companies" was defined to mean each of the
Subsidiaries and the Companies.
7.11 The provisions of Schedule 9 shall (where relevant) apply to limit the
liability of the Vendor under the Warranties provided that the
provisions of Schedule 9 shall not apply in respect of:-
7.11.1 any claim under paragraph 2.1 (capacity) or 3.1 (share
ownership) of Schedule 4; or
7.11.2 any claim arising out of any fraudulent or wilful
non-disclosure on the part of the Vendor or any of its
officers, employees or advisers.
8 RESTRICTIONS ON THE VENDOR AND THE SHAREHOLDERS
8.1 The Vendor covenants (on behalf of itself and all of the Shareholders)
with the Purchaser with the intention of assuring to the Purchaser the
full benefit and value of the goodwill of the Sale Group that, save
with the previous written consent of the Purchaser:
8.1.1 it will not for a period of twelve months following Closing
or, if relevant, the Subsequent Closing in respect of the
Shares in BICC CAFCA Limited, engage in or be interested in
any concern, undertaking firm or body corporation which
engages in any energy cable business in Zimbabwe, Angola and
Mozambique;
8.1.2 it will not, for a period of twelve months following Closing,
or, if relevant, the Subsequent Closing in respect of the
Shares in BICC General Cables Asia-Pacific Pte Ltd, either
directly or indirectly, sell or otherwise deal in energy
cables to utilities and industrial customers (but excluding
for the latter sales of such cables for shipboard, oil rig or
mass transit applications) in Malaysia and Singapore;
8.1.3 it will not, for a period of twelve months following Closing
or, if relevant, the Subsequent Closing in respect of the
Shares in BICC General Cables Asia-Pacific Pte Ltd, either
directly or indirectly, sell or otherwise deal in high-voltage
(66 kv) energy power cables in the People's Republic of China;
8.1.4 it will not for a period of twenty-four months solicit the
services of or endeavour to entice away any employee or
consultant of any Sale Group Company having an annual salary
or fee in excess of US$50,000 (or local equivalent thereof)
(whether or not such person would commit any breach of his
contract of employment or engagement by reason of leaving the
service of such company) or knowingly employ, assist in or
procure the employment by any
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other person, firm or body corporate of any such person or for
a period of 6 months from the Closing Date employ any Employee
of a Sale Group Company
8.1.5 subject to Clause 12.6, it will not at any time following the
Closing Date disclose to any person, firm or body corporate or
otherwise make use or permit the use of any trade secrets or
confidential knowledge or information concerning the business,
finances or affairs of any of the Sale Group Companies or of
any of their respective customers, clients or suppliers and
will use its best endeavours to prevent the publication or
disclosure of any such secrets, knowledge or information by
any third party;
8.2 The Vendor agrees that, having regard to the facts and matters above,
the restrictions contained in Clause 8.1 are reasonable and necessary
for the protection of the legitimate interests of the Purchaser and
that, having regard to those facts and matters, those restrictions do
not work harshly on it. It is nevertheless agreed that, if any of those
restrictions shall, taken together or separately, be held to be void or
ineffective for any reason but would be held to be valid and effective
if part of its wording were deleted, that restriction shall apply with
such deletions as may be necessary to make it valid and effective.
8.3 The restrictions contained in the sub-clauses of Clause 8.1 shall be
construed as separate and individual restrictions and shall each be
capable of being severed without prejudice to the other restrictions or
to the remaining provisions of this Agreement.
9 UNDERTAKINGS
9.1 The Vendor undertakes to the Purchaser that it shall not and shall
procure that no member of the Vendor's Group shall following Closing or
Subsequent Closing as the case may be trade under or use the name BICC
in respect of a business similar to the Businesses in any country
outside the USA, Canada or Mexico.
9.2 The Vendor shall procure that within six months of Closing all members
of the Vendor's Group incorporated in countries outside the USA, Canada
or Mexico shall remove the word "BICC" from their corporate and trading
names and shall not use any of the ▇▇▇▇ "BICC" or the word "BICC" alone
or as part of another ▇▇▇▇ or logo nor any similar ▇▇▇▇ or logo which
is likely to be confused or associated with the aforementioned in
association with any of their activities or products and the Purchaser
and the Vendor shall on Closing or Subsequent Closing procure that each
Sale Group Company shall pass a resolution to change its name to a name
without the word "BICC".
9.3 The Purchaser agrees for itself and each of the other Relevant
Purchasers that no claim shall be made under the Share Transfer
Agreements and, accordingly, any claim which
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could otherwise be made thereunder shall be made under this Agreement
or, as the case may be, the Tax Deed , in each case subject to the
limitations contained in this Agreement.
9.4 The Vendor shall supply to the Purchaser a copy of each set of audited
accounts prepared for each Sale Group Company or where unaudited a copy
of the final financial statements for such Sale Group Company for the
period ended 31 December 1999 as soon as practicable following their
preparation (the "ACCOUNTS"). The Vendor hereby confirms that the
Accounts will be prepared in accordance with the Accounting Principles
save to the extent that law in any relevant jurisdiction requires
otherwise.
9.5 The Vendor shall procure that on Closing ▇.▇. ▇▇▇▇▇▇ shall resign as a
director and employee of the Sale Group Companies and that such of the
non-executive directors of any other Sale Group Company as the
Purchaser shall nominate in writing prior to Closing shall resign their
directorships in the Sale Group Companies and the Vendor hereby agrees
to indemnify the Purchaser against any liability arising from such
resignations.
9.6 The Vendor undertakes to remove all assets from the Properties which do
form part of the Assets and do not relate to the Businesses as soon as
practicable following the Closing Date.9.7
9.7.1 The Vendor shall at its own expense (for the avoidance of doubt
including stamp duty (if any) and all land registry fees) on or before
Closing procure a transfer to a nominated company of the Vendor of the
land shown edged red on plan 8 annexed to this Agreement (the "RETAINED
LAND") and comprising part of the land and buildings at Prescot Works,
Hall Lane, Prescot, Lancashire (the "PRESCOT PROPERTY").
9.7.2 The transfer of the Retained Land shall contain reciprocal rights and
reservations relating to passage of services, light, air, rights of
way, rights of support and protection and all rights to construct any
building or buildings on the Prescot Property and the Retained Land
notwithstanding any diminution in light and air, the right at any time
within a period of 80 years from the date of the transfer to enter at
all reasonable times and upon giving to the Vendor (or its successors
in title) reasonable prior written notice (except in an emergency) and
remain upon any unbuilt part with or without workmen, plant and
machinery solely to repair, maintain, construct, reconstruct and build
any services benefiting the Prescot Property or which may at any time
in the future be required for the use and enjoyment by the owner of the
Prescot Property. The separation of the Prescot Property shall allow
BICC General UK Cables Limited to operate from Closing on a stand
alone, homogeneous, independent and self sufficient basis.
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9.7.3 As soon as reasonably practicable following Closing the Vendor
will, subject to obtaining the Purchaser's approval of its
design and materials, (such approval not to be unreasonably
withheld or delayed), erect a boundary fence between the
Prescot Property and the Retained Land and will thereafter
maintain or cause to be maintained such boundary fence in good
and substantial repair and condition.
9.7.4 The Vendor and purchaser shall not later than 15 working days
after completion of the works referred to in Annexure A enter
into a deed 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 Annexure A.
9.7.5 The Vendor and the Purchaser shall act in good faith in the
best interest of a successful completion of the separation of
the Prescot Property from the Retained Land and:
(a) 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 Annexure A; and
(b) if the rights and agreements referred to in
Annexure A 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 the Prescot Property and the Retained
Land.
9.7.6 Any dispute between the Vendor and the Purchaser as to their
respective rights, duties and obligations in respect of the
separation of Prescot Property from the Retained Land 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 the Purchaser or if they fail to agree to be
nominated by the President or next most senior available 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.
10 INDEMNITY
10.1 The Vendor shall indemnify the Purchaser (for itself and as trustee for
each Sale Group Company) against each loss, liability and cost which
the Purchaser or any Sale Group
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Company may suffer in connection with the ownership of the Sale Group
Companies or operation of the Businesses arising by reason of any act
or omission of the Vendor or any Sale Group Company prior to Closing or
the act or omission of any predecessor in title to the assets and
liabilities of the Businesses for which the Sale Group Company is
responsible prior to Closing (including, without limitation, all claims
by any person in connection with any goods or services supplied by a
Sale Group Company or for which a Sale Group Company is responsible
prior to Closing or the employment of any person by a Sale Group
Company prior to Closing or any duty of care owed to any person
employed by a Sale Group Company prior to Closing) but excluding any
loss, liability or cost the subject of the Tax Deed or the
Environmental Indemnity or Schedule 20.
10.2 The provisions of Schedule 9 shall apply to Clause 10.1, 10.4 and 10.5
but shall not apply to Clause 10.6.
10.3 For the purposes of this Clause 10, references to "Closing" shall, in
respect of any Sale Group Company the shares of which are not
transferred on Closing, be deemed to mean the Subsequent Closing on
which the transfer of the shares in such Sale Group Company takes
place.
10.4 The Vendor shall indemnify the Purchaser (for itself and as trustee for
each member of the Purchaser's Group) against each loss, liability and
cost which any member of the Purchaser's Group may suffer as a
consequence of the enforcement by ▇▇▇▇▇▇ ▇▇▇▇▇▇ Group Limited or (as
the case may be) ▇▇▇▇▇▇ Products Limited of any covenant which places a
restriction upon the freedom of any member of the Purchaser's Group
(other than BICC General CEAT Cavi S.r.L.) to carry on business with
effect from Closing under either (i) the agreement entered between BICC
CEAT Cavi S.r.L., BICC plc and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Group Limited dated 30
December 1998 or (ii) the agreement entered into between BICC
Components Limited and ▇▇▇▇▇▇ Products Limited dated 20 December 1996
save where such loss, liability or cost is caused by (a) the
appointment by any member of the Purchaser's Group of BICC General Ceat
Cavi S.r.L as its agent or representative or (b) the breach by BICC
General Ceat Cavi S.r.L of the non-compete covenants of either of such
aforementioned agreements on or after Closing.
10.5 TITLE INSURANCE INDEMNITY
The Vendor shall indemnify and keep indemnified the Purchaser and any
Sale Group Company against the reasonable cost of obtaining in the
insurance market insurance against the risk of any adverse claim to
title by a third party in respect of any part of the Property which
becomes registered with possessory title pursuant to the Vendor's
present application for first registration of title to the Properties
at Leigh and Wrexham.
10.6 COSTS INDEMNITY FOR ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇
▇▇
The Vendor shall indemnify and keep indemnified the Purchaser and any
Sale Group Company against any costs actually and properly incurred by
the Purchaser as a consequence of the failure by the relevant Sale
Group Company or BICC plc or any other party to carry out the agreed
works in connection with the disclosed separation agreements affecting
the Properties at Wrexham and Leigh.
11 TRANSITIONAL ARRANGEMENTS
The Vendor and the Purchaser hereby agree to execute at Closing certain
transitional agreements relating to the following:
11.1 continued support by certain personnel of Sale Group Company of IT
facilities at certain of Vendor's Group manufacturing facilities;
11.2 supply by Sales Group Companies of certain compounds to Vendor's Group
facility in Spain and assistance to enable Vendor's Group or a
sub-contract manufacturer to manufacture such compounds;
11.3 supply by Vendor's Group of certain compounds to Sales Group Companies
and assistance to enable Sales Group Companies or a sub-contract
manufacturer to manufacture such compounds; and
11.4 supply of such other goods and services (in addition to those set out
above) provided by the Vendor's Group to the Sales Group Companies or
vice-versa prior to Closing which are necessary to be provided after
Closing to enable the Sale Group Companies or the Vendor's Group to
carry on business
(together the "TRANSITIONAL ARRANGEMENTS").
The Transitional Arrangements shall provide, inter alia, that the services or
products to be provided on request thereunder be provided for a maximum period
of 12 months from Closing which may be extended if the party fails to gain
access to another supplier or gain or maintain any necessary technical
contractual qualification and on reasonable terms including the same payment
terms as were in effect prior to Closing and in any event not being less than
the full cost of providing such services or products.
12 INTELLECTUAL PROPERTY
12.1 At Closing the Vendor shall assign or shall procure the assignment to
the Purchaser of any Intellectual Property Rights owned by the Vendor's
Group at Closing :
(a) relating to the Underwater Field:
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(i) Which, prior to Closing, was used by the Sale Group
or relates exclusively or primarily in or to the
Underwater Field or;
(ii) which was conceived, discovered, developed (1) in a
Country where one of the Sale Group Companies is
located or (2) by an employee of one of the Sale Group
Companies or of any company to which any of the Sale
Group Company succeeded by way of a corporate
restructuring, or
(iii) with respect to patents and any other registered
rights, whose relevant priority application or first
application was filed by one of the Sale Group
Companies, or by any company to which any of the Sale
Group Company succeeded by way of a corporate
restructuring
(b) relating to the Terrestrial Field:
(i) which was conceived, discovered, developed
(1) in a Country where one of the Sale Group Companies
is located or (2) by an employee of one of the Sale
Group Companies or of any company to which any of the
Sale Group Company succeeded by way of a corporate
restructuring, or
(ii) with respect to patents and any other
registered rights, whose relevant priority application
or first application was filed by one of the Sale Group
Companies or by any company to which any of the Sale
Group Company succeeded by way of a corporate
restructuring
provided that nothing in this clause 10.1(b) shall operate to
transfer to the Purchaser Intellectual Property Rights owned
by BICC General Pyrotenax Cables Limited which is either used
exclusively or primarily by BICC General Pyrotenax Cables
Limited as at the Closing Date or relates exclusively or
primarily to the business carried on by BICC General Pyrotenax
Cables Limited, as at the Closing Date, all of which such
Intellectual Property Rights shall remain the property of BICC
General Pyrotenax Cables Limited.
12.2 The Vendor undertakes after Closing:
12.2.1 as to patents, trademarks and other registered rights, at the
request of Purchaser, to promptly execute or procure the
execution of all such documents as shall be necessary to
secure the vesting in the relevant Purchaser Group of any
Intellectual Property Rights owned by the Vendor's Group to be
assigned pursuant to the above;
12.2.2 as to know-how, to properly identify, list and transfer the
deliverable know-how to be assigned to Purchaser pursuant to
the above where deliverable know-
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how means whatever know-how is associated with a physical
support (including, without limitation, paper, magnetic tape,
computer disk or floppy disk, computer memory, film or
microfilm) and is accordingly "deliverable" from a person to
another,
provided that the Purchaser undertakes with the Vendor that the Vendor
will be responsible for preparing all such documents under Clause
12.2.1 in co-operation with the Purchaser, where required, and provided
that the Purchaser shall be responsible for all costs reasonably and
properly incurred by the Vendor and the Vendor's Group and all other
costs and expenses in respect of such vesting including, but not
limited to the costs of effecting and recording the relevant
assignments at the relevant Patent and Trade ▇▇▇▇ Office.
12.3 At Closing, the Purchaser shall assign or shall procure the assignment
to the Vendor's Group any Intellectual Property Rights owned by the
Sale Group Companies at Closing relating to the Terrestrial Field:
12.3.1 which was conceived, discovered, developed (1) in a Country
where one of the Vendor Group Companies is located, or (2) by
employees of one of the Vendor Group Companies, or of any
company to which the Vendor Group Companies succeeded by way
of corporate restructuring, both in case (1) and (2) on
condition that no employee of one of the Sale Group Companies
or of any company to which any of the Sale Group Company
succeeded by way of a corporate restructuring contributed to
such conception, discovery, development, or
12.3.2 which is used exclusively by BICC General Pyrotenax Cables
Limited as at the Closing Date or exclusively relates to the
business carried on by BICC General Pyrotenax Cables Limited
as at the Closing Date; or
12.3.3 with respect to patents and any other registered rights, whose
relevant priority application or first application was filed
by one of the Vendor Group Companies or by any company to
which the Vendor Group Companies succeeded by way of corporate
restructuring on condition that (1) the patented invention has
been made in a Country where one of the Vendor Group Companies
is located, exception made for any Country where also a Sale
Group Company is located and (2) no employee of one of the
Sale Group Companies or of any company to which any of the
Sale Group Company succeeded by way of a corporate
restructuring is a (co-) inventor of the patented invention.
12.4 The Purchaser undertakes after Closing:
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12.4.1 as to patents, trademarks and other registered rights, at the
request of Vendor, to promptly execute or procure the
execution of all such documents as shall be necessary to
secure the vesting in the relevant Vendor Group Company of any
Intellectual Property Rights owned by the Sale Group Companies
to be assigned pursuant to the above;
12.4.2 as to know-how, to properly identify, list and transfer the
deliverable know-how (as hereinabove defined) to be assigned
to Vendor pursuant to the above,
provided that the Vendor undertakes with the Purchaser that the
Purchaser will be responsible for preparing all such documents under
Clause 12.4.1 in co-operation with the Vendor if requested and provided
that the Vendor shall be responsible for all costs reasonably and
properly incurred by the Purchaser and all other costs and expenses in
respect of such vesting included, but not limited to, the costs of
effecting and recording the relevant assignment of the relevant Patent
and Trade ▇▇▇▇ Offices.
12.5 The Vendor will, at Closing, assign or, after Closing, in case the
consent of a third party is required, use best efforts to assign or
procure the assignment or novation to the Sale Group Companies of any
licence of Intellectual Property Rights granted by a third party to the
Vendor's Group where such licence relates to Intellectual Property
Rights used in or relating exclusively or primarily to the Underwater
Field or prior to Closing the Sales Group Companies used or had an
intention to use the rights licensed under such license.
12.6 The Purchaser hereby grants or shall procure the grant to the Vendor's
Group a royalty free, non-exclusive, irrevocable world-wide licence
under the Intellectual Property Rights owned by the Sale Group
Companies at Closing to continue to manufacture and supply the products
(and evolutions thereof) manufactured and supplied and to continue to
operate the processes operated at Closing.
12.7 The Vendor hereby grants or shall procure the grant to the Purchaser
and the Sale Group Companies a royalty-free, non-exclusive,
irrevocable, world-wide licence to exploit the Intellectual Property
Rights owned by the Vendor's Group at Closing and used by the Sales
Companies or intended to be used by the Sales Companies at Closing in
the Energy Field.
12.8 The Purchaser shall be free to use the know how in the custody of the
Sales Group Companies at Closing, such know how being in deliverable
form and in the unaided mind of the people of the Sales Companies.
13 BONDS AND GUARANTEES
13.1 The Purchaser agrees to use all its reasonable endeavours from the
Closing Date to achieve the release of any member of the Vendor's Group
from such of the bonds or
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guarantees issued by banks or financial institutions details of which
shall be provided by the Vendor to the Purchaser prior to Closing on
behalf of the Sales Group Companies in respect of the Businesses as
relate to any of the contracts entered into by the Sale Group Companies
in the normal course of business with their respective customers. The
Purchaser shall have no obligation in respect of bonds or guarantees
issued in respect of an Overseas Company until such time as Closing or
Subsequent Closing occurs in respect of such Overseas Company.
13.2 After Closing or Subsequent Closing (as the case may be) but prior to
such release the Purchaser undertakes to the Vendor (for itself and as
trustee for each member of the Vendor's Group) to keep each member of
the Vendor's Group indemnified against any liability under the bonds
and guarantees referred to in Clause 13.1 arising after Closing
provided always that the Purchaser shall have no liability to the
Vendor pursuant to this Clause 13.2 if the liability incurred by the
Vendor results from an event which occurs prior to Closing or results
from any action taken by a member of the Vendor's Group after Closing.
For the avoidance of doubt this shall include the failure by the
relevant Sale Group Company to meet any particular specification or
target or other contractual term in the contract to which the guarantee
or bond relates.
14 PENSIONS
The provisions of Schedule 6 shall have effect.
15 TAXATION
The Tax Deed shall be entered into by the parties at the Closing Date.
16 CONFIDENTIALITY
16.1 Subject to the provisions of Clause 16.2, neither Party shall issue any
press release or publish any circular to shareholders or any other
public document or make any statement or disclosure to any person who
is not a Party (including (without limitation) any document, statement
or disclosure published, issued or made by the Vendor to any supplier
to or customer of any of the Companies), in each case relating to or
connected with or arising out of this Agreement or the matters
contained in it, without obtaining the previous approval of the other
Party to its contents and the manner of its presentation and
publication or disclosure (such approval not to be unreasonably
withheld or delayed).
16.2 The provisions of Clause 16.1 do not apply to:-
16.2.1 any announcement relating to or connected with or arising out
of this Agreement required to be made by the Purchaser by
virtue of the regulations of any recognised stock exchange or
by law; or
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16.2.2 any document, statement or disclosure published, issued or
made by the Purchaser after Closing to any supplier to or
customer of any of the Companies.
16.3 The Purchaser shall prior to Closing keep confidential all information
regarding the Vendor and the Sale Group Companies and their respective
businesses which is not in the public domain, and (save for any
disclosure required by law or any stock exchange) shall not disclose
the same to any third party or make use of such information in any way
except with the prior written consent of the Vendor.
17 ASSIGNMENT
17.1 Subject to this Clause 17, this Agreement shall be binding upon and
ensure for the benefit of the successors and assigns of the Parties.
17.2 The Vendor shall not be entitled to assign its rights or obligations
under this Agreement without the previous written consent of the
Purchaser.
17.3 The Purchaser may assign the benefit of this Agreement to any member or
members of the Purchaser's Group from time to time provided always that
the relevant member of the Purchaser's Group undertakes to reassign the
benefit of the Agreement to the Purchaser (or another member of the
Purchaser's Group) if it ceases to be a member of the Purchaser's Group
and may assign the benefit of the Warranties, the Environmental
Indemnity, the Tax Deed, the indemnity set out in Clause 10 and
Schedule 20 in accordance with paragraph 2.2 of Schedule 9.
18 GENERAL
18.1 The Vendor shall do or procure to be done all such further acts and
things and execute or procure the execution of all such other documents
as the Purchaser may from time to time reasonably require for the
purpose of giving the Purchaser the full benefit of the provisions of
this Agreement.
18.2 The Purchaser shall do or procure to be done all such further acts and
things and execute or procure the execution of all such other documents
as the Vendor may from time to time reasonably require for the purpose
of giving the Vendor the full benefit of the provisions of this
Agreement.
18.3 This Agreement, and the documents referred to in it, constitutes the
entire agreement and understanding of the Parties. Each of the Parties
acknowledges and agrees that in entering into this Agreement, and the
documents referred to in it, it does not rely on, and shall have no
remedy in respect of, any statement, representation, warranty or
understanding (whether negligently or innocently made) of any person
(whether party to this Agreement or not) other than as expressly set
out in this Agreement as a Warranty.
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The only remedy available to it for breach of the Warranties shall be
for breach of contract under the terms of this Agreement. Nothing in
this sub-clause shall, however, operate to limit or exclude any
liability for fraud.
18.4 Each of the Vendor and the Shareholders waive any rights of pre-emption
over the Shares conferred on it or held by it either by virtue of the
constitutional documents of each of the companies or by express
agreement or otherwise.
18.5 Each Party shall pay his or its own costs and expenses of and
incidental to this Agreement and the sale and purchase of the Shares.
18.6 This Agreement shall, as to any of its provisions remaining to be
performed or capable of having or taking effect following Closing,
remain in full force and effect notwithstanding Closing.
18.7 Unless expressly provided otherwise, all representations, warranties,
undertakings, covenants, agreements and obligations made, given or
entered into in this Agreement by more than one person are made, given
or entered into jointly and severally.
18.8 The failure of the Purchaser at any time or times to require
performance of any provision of this Agreement shall not affect its
right to enforce such provision at a later time.
18.8.1 No waiver by the Purchaser of any condition or of the breach
of any term, covenant, representation, warranty or undertaking
contained in this Agreement, whether by conduct or otherwise,
in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such
condition or breach or a waiver of any other condition or of
the breach of any other term, covenant, representation,
warranty or undertaking in this Agreement.
18.8.2 Any liability to the Purchaser under this Agreement may in
whole or in part be released, compounded or compromised and
time or indulgence may be given by the Purchaser in its
absolute discretion as regards any Party under such liability
without in any way prejudicing or affecting its rights against
any other Party under the same or a like liability, whether
joint and several or otherwise.
18.9 This Agreement may be amended, modified, superseded or cancelled and
any of its terms, covenants, representations, warranties, undertakings
or conditions may be waived only by an instrument in writing signed by
(or by some person duly authorised by) each of the Parties or, in the
case of a waiver, by the Party waiving compliance.
18.10 To the extent that the provisions of this Agreement are inconsistent
with or additional to the provisions of a Share Transfer Agreement, the
provisions of this Agreement shall
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prevail and the Vendor and the Purchaser shall procure that the
provisions of the relevant Share Transfer Agreement are adjusted to the
extent necessary to give effect to the provisions of this Agreement
and/or that the relevant Shareholder and the Relevant Purchaser comply
with the provisions in place of the provisions of the relevant Share
Transfer.
19 NOTICES
19.1 Any notice to be served in connection with this Agreement shall be in
the English language, in writing and shall be sent by internationally
recognised courier service or transmitted by fax:-
19.1.1 in the case of the Vendor or the Shareholders to:
General Cable Corporation
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
19.1.2 in the case of the Purchaser or the Relevant Purchasers to:
Pirelli S.p.A.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Attention: Chief Legal Officer
Fax: ▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
19.1.3 in the case of a Party who has appointed an agent for service
in Clause 19.5 below, to the address stated in Clause 19.5 (or
to any other address of which the Party serving or sending the
document has received notice in writing from that Party or his
agent).
19.2 Any such notice shall be deemed to have been served as follows:-
19.2.1 in the case of service by courier, on the second Business Day
after the day on which it was collected by the courier;
19.2.2 in the case of transmission by fax, on the day it is
transmitted.
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19.3 Subject as provided in Clause 19.2, in proving such service it shall be
sufficient to prove that the notice was properly addressed and left at,
posted to or transmitted by Fax to that address.
19.4 For the purpose of this Clause, "Business Day" shall mean any day other
than Saturday, Sunday or any other day which is a public holiday in the
place at or to which the notice is left or despatched.
19.5 The Purchaser irrevocably appoints WG&M Secretaries Limited at its
registered office for the time being and the Vendor irrevocably
appoints Norose Notices Limited at its registered office for the time
being (quoting reference MM/Z998630) to be their respective agents for
service of process and notices in England.
20 GOVERNING LAW AND JURISDICTION
20.1 This Agreement shall be governed by and construed in accordance with
the laws of England.
20.2 The Parties submit to the non-exclusive jurisdiction of the English
Courts as regards any claim, dispute or matter arising out of or
relating to this Agreement or any of the documents to be executed
pursuant to this Agreement.
Signed and delivered on the date set out at the head of this Agreement.
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SCHEDULE 1
THE COMPANIES
BICC GENERAL CABLES ASIA-PACIFIC PTE LTD
1 Registered number: 199403599M
2 Date of incorporation: 23.5.1994
3 Place of incorporation: Singapore
4 Legislation under which incorporated: Singapore Law
5 Registered office address: Ocean Tower #17-00
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
6 Directors: ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ Gatiss
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
7 Secretary: ▇▇▇▇▇ Foo - ▇▇▇▇ & ▇▇▇▇▇▇
8 Authorised share capital: 250,000 ordinary @ S$1.00
9 Issued share capital: 213,324,000 (including 217,660,000
shares waiting to be issued) held as to
99% by GK Technologies Inc. and 1%
by General Cable Overseas Holding
Inc.
10 Issued loan capital: _
11 Charges: none filed
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BICC GENERAL CAVI CAVI S.R.L.
1 Registered number: _
2 Date of incorporation: _
3 Place of incorporation: Italy
4 Legislation under which incorporated: Italian Company Code for SrLs
5 Registered office address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Torinese (TO)
Italy
6 Directors: M Geroli (President)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
7 Secretary: appointed each meeting
8 Authorised share capital: quota 80 billion Lire
9 Issued share capital: quota 80 billion Lire
held as to 99% by GK Technologies Inc. and as to
1% by General Cable Overseas Holdings Inc.
10 Issued loan capital: None
11 Charges: Over land and buildings at Ascoli and
Settimo and general lien over business
in favour of BNL Industrial Credit
Section re loan on which there is
outstanding billion Lire 1.7
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BICC GENERAL UK CABLES LTD
1 Registered number: 03710603
2 Date of incorporation: 10 February 1999
3 Place of incorporation: England and Wales
4 Legislation under which incorporated: Companies ▇▇▇ ▇▇▇▇
5 Registered office address: ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇
6 Directors: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
7 Secretary: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
8 Authorised share capital: 100 ordinary shares of (pound)1 each
9 Issued share capital: 100 held by General Cable Holdings (UK) Limited
10 Issued loan capital: _
11 Charges: none filed
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TRANS-POWER CABLES PTE LIMITED
1 Registration Number: _
2 Date of incorporation: _
3 Place of incorporation: Singapore
4 Registered office address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
#▇▇-▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
5 Regulation under which incorporated: Singapore law
6 Directors: _
7 Secretary: _
8 Authorised share capital: _
9 Issued share capital: 1.5 million ordinary shares at S$1 each
held as to 99% by GK Technologies Inc.
and 1% by General Cable Overseas
Holdings Inc.
10 Issued loan capital: _
11 Charges: none filed
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BICC GENERAL INDUSTRIAL CABLES LTD
1 Registered number: 03710618
2 Date of incorporation: 10 February 1999
3 Place of incorporation: England and Wales
4 Legislation under which incorporated: Companies ▇▇▇ ▇▇▇▇
5 Registered office address: ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
6 Directors: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
7 Secretary: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
8 Authorised share capital: 100 ordinary shares of (pound)1 each
9 Issued share capital: 100 held by General Cable Holdings (UK) Limited
10 Issued loan capital: _
11 Charges: none filed
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BICC SUPERTENSION CABLES (1980) LTD
1 Registered number: 263259
2 Date of incorporation: 5 March 1932
3 Place of incorporation: England
4 Legislation under which incorporated: Companies ▇▇▇ ▇▇▇▇
5 Registered office address: ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇, ▇▇▇ ▇▇▇
6 Directors: ▇ ▇ ▇▇▇▇
▇ ▇ ▇▇▇▇▇▇▇
7 Secretary: ▇ ▇ ▇▇▇▇▇▇▇
8 Authorised share capital: (pound)100
9 Issued share capital: 100 ordinary shares of (pound)1.00 each held
by General Cable Holdings (UK) Ltd
10 Issued loan capital: _
11 Charges: none filed
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BICC GENERAL ROD ROLLERS LIMITED
1 Registered number: 03896724
2 Date of incorporation: 20 December 1999
3 Place of incorporation: England and Wales
4 Legislation under which incorporated: Companies ▇▇▇ ▇▇▇▇
5 Registered office address: ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
6 Directors: Ian ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
7 Secretary: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
8 Authorised share capital: 1000 shares of (pound)1 each
9 Issued share capital: 1 ordinary share of (pound)1 held by General
Cable Holdings (UK) Limited
10 Issued loan capital: _
11 Charges: None filed
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BICC CAFCA LIMITED
1 Registered number: 40/1945
2 Date of incorporation: 31 July 1945
3 Place of incorporation: Harare, Zimbabwe
4 Legislation under which incorporated: Zimbabwe Companies Act
5 Registered office address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Zimbabwe
6 Directors: H. P. Mkushi
▇ ▇ ▇▇▇▇▇
▇ ▇ ▇▇▇▇▇▇▇▇▇
A A Botsh
▇ ▇ ▇▇▇
A Mabena
J R ▇▇▇▇▇▇▇
▇ ▇ ▇▇▇▇▇▇
7 Secretary: ▇ ▇ ▇▇▇▇▇▇▇▇▇▇
8 Authorised share capital: 1000 5,5% cumulative preference
shares of Z$2;00 each and 50 million
ordinary shares of Z$0.50 each
9 Issued share capital: 31,412,000 Ordinary Shares of Z$0.50
held by General Cable Holdings
Netherlands C.V.
10 Issued loan capital: _
11 Charges: none filed
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▇▇▇▇▇▇ - FABRICA DE CONTUDORES ELECTRICOS DE ANGOLA SARL
1 Registered number:
2 Date of incorporation:
3 Place of incorporation: Angola
4 Legislation under which incorporated:
5 Registered office address:
6 Directors:
7 Secretary:
8 Authorised share capital:
9 Issued share capital: held by BICC Celcat, Cabos de Energia
e Telecommunicaciones SA
10 Issued loan capital:
11 Charges:
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SCHEDULE 2
THE SUBSIDIARIES
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BICC CABLES CHINA LTD
1 Registered number: 107464
2 Date of incorporation: January 1982
3 Place of incorporation: Hong Kong
4 Legislation under which incorporated: Law of Hong Kong
5 Registered office address: 1011 Great ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
6 Directors: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Khoo ▇▇▇ ▇▇▇
7 Secretary: _
8 Authorised share capital: 2000 ordinary of HK $200 each
9 Issued share capital: 2000 ordinary shares held by BICC
General Cables Asia-Pacific Pte Limited
10 Issued loan capital: _
11 Charges: none filed
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BICC GENERAL CABLES MALAYSIA SDN BHD
(PREVIOUSLY POWER CABLES MALAYSIA SDN BHD)
1 Registered number: 23637X
2 Date of incorporation: 25.07.1975
3 Place of incorporation: Malaysia
4 Legislation under which incorporated: Malaysia
5 Registered office address: Shah Alam Factory
▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇/▇▇
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6 Directors: Gen. Tan Sri Dato ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ bin Wok Kamarudin
Gen Tan Sri Mohd Ngah
Maj. Gen. ▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
7 Secretary: Mak ▇▇▇▇ ▇▇▇▇
8 Authorised share capital: R20 million
9 Issued share capital: R8 million held by BICC General Cables
Asia-Pacific Pte Limited
10 Issued loan capital: _
11 Charges: none filed
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BICC (MALAYSIA) SDN BHD
1 Registered number: 113947 -M
2 Date of incorporation: _
3 Place of incorporation: Malaysia
4 Legislation under which incorporated: Malaysian law
5 Registered office address: 27th Floor Menara Promet
Jalan ▇▇▇▇▇▇ ▇▇▇▇▇▇
50250 KL
6 Directors: Khoo ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Yusof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
7 Secretary: _
8 Authorised share capital: 250,000 ordinary @ M$1 each
9 Issued share capital: 100,000 ordinary of which 30% is held
by BICC General Cables Asia-Pacific
Pte Limited (and 70% of which are held
by Janal Mohd as a nominee of BICC
General Cables Asia -Pacific Ltd.)
10 Issued loan capital: _
11 Charges: none filed
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BICC CABLES MALAYSIA PTE LTD
1 Registered number: 199503142W
2 Date of incorporation: 06.05.1995
3 Place of incorporation: Singapore
4 Legislation under which incorporated: Singapore law
5 Registered office address: ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
#▇▇-▇▇/▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
6 Directors: ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ Gatiss
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
7 Secretary: Vantage Management Services
8 Authorised share capital: 2 ordinary of S$2 each
9 Issued share capital: 2 ordinary of S$ 2 each held by BICC
General Cables Asia-Pacific Pte Ltd
10 Issued loan capital: _
11 Charges: none filed
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BICC ENERGY CABLES PTE LTD
1 Registered number: 197302310M
2 Date of incorporation: 8.12.1973
3 Place of incorporation: Singapore
4 Legislation under which incorporated: Singapore law
5 Registered office address: ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
#▇▇-▇▇/▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
6 Directors: ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ Gatiss
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tan Chew Wah
7 Secretary: Vantage Management Services
8 Authorised share capital: 7,000,000: pref. shares 2,000,000 of
@$1,000 each ordinary shares of
$1,000 each
9 Issued share capital: 3,000,000 ordinary shares 1,000,000 preference
shares 2,000,000 held by BICC
General Cables Asia-Pacific Pte Ltd.
10 Issued loan capital: _
11 Charges: none filed
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BICC GENERAL BAOSHENG CABLE CO LTD
1 Registered number: _
2 Date of incorporation: October 1999
3 Place of incorporation: China
4 Legislation under which incorporated: Peoples Republic of China law
5 Registered office address: ▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
6 Directors: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇
7 Secretary: _
8 Authorised share capital: US$19,500,000
9 Issued share capital: US$19,500,000 of which 67% is held by
BICC General Cables Asia-Pacific Pte
Ltd.
10 Issued loan capital: _
11 Charges: none filed
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ZIMBABWE CABLES (PTE) LIMITED
1 Registered number:
2 Date of incorporation:
3 Place of incorporation: Zimbabwe
4 Legislation under which incorporated:
5 Registered office address:
6 Directors:
7 Secretary:
8 Authorised share capital:
9 Issued share capital: Held by BICC CAFCA Limited
10 Issued loan capital:
11 Charges:
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BICC (CENTRAL AFRICA) (PRIVATE) LIMITED
1 Registered number: 354/1956
2 Date of incorporation: 26 May 1956
3 Place of incorporation: Harare, Zimbabwe
4 Legislation under which incorporated: Zimbabwe Companies Act
5 Registered office address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Zimbabwe
6 Directors: ▇ ▇ ▇▇▇▇▇▇▇▇▇
▇ ▇ ▇▇▇▇▇▇▇▇▇▇
7 Secretary: ▇ ▇ ▇▇▇▇▇▇▇▇▇▇
8 Authorised share capital: 100,000 ordinary of Z$2.00 each
9 Issued share capital: 100,000 ordinary of Z$2.00 each held
by BICC CAFCA Ltd.
10 Issued loan capital: _
11 Charges: none filed
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CELMOQUE - FABRICA NACIONAL DE CONTUDORES ELECTRICOS SARL
1 Registered number:
2 Date of incorporation:
3 Place of incorporation: Mozambique
4 Legislation under which incorporated:
5 Registered office address:
6 Directors:
7 Secretary:
8 Authorised share capital:
9 Issued share capital: 18% held by BICC CAFCA Ltd
29% held by BICC Celeat, Cabos de
Energia e Telecommunicaciones SA
10 Issued loan capital:
11 Charges:
GENERAL CABLE CORPORATION
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
PIRELLI CAVI E SISTEMI S.P.A
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
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