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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________________
FORM 8-K
Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
Date of Report July 19, 1996
(Date of Earliest Event Reported)
_______________________________________
Precision Castparts Corp.
(Exact name of registrant as specified in its charter)
Oregon 1-10348 93-0460598
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation of File No.) Identification No.)
organization)
4600 S.E. Harney Drive
Portland, Oregon 97206-0898
Registrant's telephone number,
including area code: Telephone: (503) 777-3881
No Change
(Former name or address, if changed since last report)
_______________________________________
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Item 2.
On July 19, 1996, Precision Castparts Corp. ("PCC")
purchased substantially all of the assets of AE Turbine
Components Limited ("AETC") from AETC and its parent, T & N
plc, headquartered in Manchester, U.K. AETC is an European
manufacturer of investment castings for the aircraft engine
and industrial gas turbine markets. The purchase price was
$41.0 million pounds, or $63.4 million dollars, subject to
adjustment. The transaction was financed from borrowings
under a Credit Agreement with Bank of America National Trust
& Savings Association, as Agent.
Item 7.
Financial Statements, Pro Forma Financial Information
and Exhibits.
(a) Financial Statements.
Pursuant to Item 7(a)(4) of Form 8-K, it is
currently impracticable to file the required financial
statements; therefore, these financial statements will be
filed as soon as practicable, but not later than October 4,
1996.
Pursuant to Item 7(b)(2) of Form 8-K, it is
currently impracticable to file the pro forma financial
information; therefore, the pro forma financial information
will be filed under cover of Form 8 as soon as practicable,
but not later than October 4, 1996.
(c) Exhibits.
(1) Purchase and Sale Agreement relating to AE Turbine
Components Limited.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this Report to
be signed on its behalf by the undersigned hereunto duly
authorized.
PRECISION CASTPARTS CORP.
Dated August 5, 1996 /s/ W.D. Larsson
______________________________
W. D. Larsson
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N:AETC.ESL
Date: 19 July 1996
Parties:
(1) ("T&N") T&N plc (company number 163992) of Bowdon House,
Ashburton Road West, Trafford Park, Manchester M17 1RA
(2) ("AETC") AE TURBINE COMPONENTS LIMITED (company number
928943) of Victoria Avenue, Yeadon, Leeds, West Yorkshire LS19
7AY
(3) ("ESL") T&N EXPORT SERVICES LIMITED (company number 532743)
of Bowdon House, Ashburton Road West, Trafford Park, Manchester
M17 1RA
(4) ("PCC") PRECISION CASTPARTS CORP. of 4600 S.E. Harney Drive,
Portland, Oregon 97206-0898, USA
(5) ("AL") AETC LIMITED (company number 3206792) of Victoria
Avenue, Yeadon, Leeds, West Yorkshire LS19 7AY
WHEREAS
(A) AETC and ESL are wholly owned subsidiaries of T&N.
(B) AL is a wholly owned subsidiary of PCC.
(C) At the date hereof, AETC carries on the Business (as
hereinafter defined) which Business is carried on as agent
for and on behalf of T&N pursuant to the Agency Agreement.
(D) AETC also carries on the business formerly carried on by AE
Turbine Components (Leicester) Limited as agent for and on
behalf of T&N pursuant to an agency agreement dated 30th
June 1987 made between T&N (under its then name of Turner &
Newall plc) of the first part and AE Holdings Limited of the
second part and AE Turbine Components (Leicester) Limited of
the third part.
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Operative Provisions:
1 Interpretation
1.1 In this agreement including the Schedules:
1.1.1 the following words and expressions have the
following meanings except where otherwise
provided:-
"Accounts" means the unaudited financial
statements of the Business for the twelve
month period ended 31 December 1995 which are
attached to the Disclosure Letter and which
comprise a Balance Sheet as at that date and
a Profit and Loss Account in respect of that
period together with supporting papers
submitted to T&N for the purposes of
facilitating the preparation of T&N's audited
consolidated accounts in respect of that same
period.
"Agency Agreement" means an agreement dated
30 June 1987 and made between T&N (under its
then name of Turner & Newall plc), AE
Holdings Limited and AETC pursuant to which
AETC accepted an appointment as T&N's agent
relative to the carrying on of the Business.
"Agreed Terms" means terms agreed by or on
behalf of the Vendors and the Purchaser.
"Air Products Liability" means any liability
of AETC to pay damages to Air Products
Limited as a result of AETC serving notice
prior to Completion upon Air Products Limited
to terminate the contract then existing
between AETC and Air Products Limited
relative to the purchase and supply of liquid
oxygen to the Leicester Property.
"Assets" means the property, assets and
rights of the Business to be purchased by the
Purchaser as described in clause 2.2 and the
subclauses of clause 2.1.
"Assumed Liabilities" has the meaning given
in clause 8.1.
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"Balance" means the amount determined under
clause 4.3 to be owed by the Vendors to the
Purchaser or the Purchaser to the Vendors, as
the case may be.
"Business" means the business of the
manufacture, machining and repair of hot
gaspath components for gas turbines carried
on by AETC as agent for T&N at the Completion
Date.
"Completion" means completion as per
clause 5.
"Completion Date" means the date of this
agreement.
"Consideration" means the consideration due
from the Purchaser to the Vendors and ESL for
the Business and Assets, calculated in
accordance with clauses 3 and 4.
"Contracts" means all current contracts,
engagements, licences and other commitments
relating to the Business which have been
entered into or undertaken prior to
Completion by or on behalf of the Vendors in
the course of the Business, but excluding
contracts with Employees and any agreements
referred to in Schedule 1.
"Creditors" means all the trade debts and
accrued charges owed by the Vendors in
connection with the Business as at the
Completion Date whether due for payment or
not (such debts and charges to be determined
for the purpose of this definition on the
assumption that any member of the Vendors'
Group trading as an agent of T&N did not so
trade but carried on its trade in its own
right and for its own account) but:
(i) excluding amounts owed (other than
in the ordinary course of trading)
by either of the Vendors in
connection with the Business to any
member of the Vendors' Group (such
amounts to include any representing
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charges made by T&N to AETC in
respect of finance provided to or
insurance coverage taken in respect
of the Business or of a general
management nature); and
(ii) excluding all trade debts in
respect of which either of the
Vendors has despatched to the
relevant creditor a cheque by way
of payment and that cheque has not
at the Completion Date cleared the
bank account of that Vendor on
which it was drawn; and
(iii) excluding any Taxation.
"Debtors" means (a) all debts owed to the
Vendors in connection with the Business as at
the Completion Date and (b) prepayments made
by the Vendors in connection with the
Business as at the Completion Date but
excluding (i) any inter-company loans and
inter-company current debts between any of
T&N and AETC and other members of the
Vendors' Group and (ii) the ESL Book Debts.
"Disclosure Letter" means the letter of
today's date from the Vendors to the
Purchaser qualifying the Warranties in Agreed
Terms.
"Effective Date" means 24:00 hours 30 June
1996/00:00 hours 1 July 1996.
"Effective Date Balance Sheet" means a
balance sheet as of the Effective Date,
reflecting the Assets and the Assumed
Liabilities, prepared by the Purchaser and
submitted to the Vendors in accordance with
clause 4.
"Effective Date Net Worth" means the amount
by which the total value of the Assets
reflected on the Final Balance Sheet exceeds
the total value of the Assumed Liabilities
reflected on the Final Balance Sheet.
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"Employees" means the persons who, at the
Completion Date, were employed by the Vendors
in the Business and are listed in the
Disclosure Letter.
"ESL Book Debts" means all book debts, notes
receivable and other payments owing to ESL in
connection with the Business at the
Completion Date.
"Environmental Warranties" means those
Warranties set out at paragraph 16 of
Schedule 6.
"Excluded Assets" means the assets and
services whether used in the Business or
otherwise which are referred to in Schedule 1
and which are excluded from the sale to the
Purchaser.
"Excluded Employee" means any person who, at
the Completion Date, was employed by the
Vendors in the Business other than an
Employee.
"Excluded Liabilities" has the meaning given
in clause 8.2.
"Executed Contracts" means any contract made
by the Vendors with a third party relative to
the Business which has at Completion been
performed by both the Vendors and that third
party notwithstanding that relative to that
contract either of the Vendors may remain
subject to a Product Warranty Liability
(actual or contingent).
"Final Balance Sheet" has the meaning given
in clause 4.2.
"Fixed Assets" means all plant, machinery,
tooling, equipment, furniture, fixtures
(other than landlord's fixtures and
fittings), vehicles and other chattels on the
Properties or elsewhere owned by the Vendors
at the Completion Date and used for the
purpose of the Business.
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"Forex Contracts" means each and every
contract made between AETC and ESL pursuant
to the terms of which AETC has either the
obligation or the right (whether or not in
each case contingent on the occurrence of an
identified event) in certain circumstances or
on certain dates to receive prescribed
amounts of pounds sterling or as the case may
be foreign currency from ESL in exchange for
prescribed amounts of foreign currency or as
the case may be POUNDS sterling.
"Free Issue Materials" means any plant,
machinery, tools, equipment, chattel, raw
material or partly manufactured goods in
which the Vendors have no proprietary
interest but which has at the Completion Date
been made available to them by a customer of
the Business for the purpose of their
performance of a Contract.
"Goodwill" means the goodwill of the Vendors
in relation to the Business, together with
the exclusive right for the Purchaser to
represent itself as carrying on the Business
in succession to the Vendors, and the right
to use the trading name "AETC".
"GTC Liability" means any liability of AETC
to GTC Gas Turbine Limited or the Ministry of
Defence which relates exclusively to the
level of pricing adopted by AETC prior to
Completion when carrying out work pursuant to
a contract with GTC Gas Turbine Limited in
respect of RB199 HPC vane repair work.
"Howmet Liability" means any liability of the
Vendors to Howmet Corporation relative to
those allegations set out in a letter of 12
June 1996 from Howmet Corporation to AETC
attached to the Disclosure Letter.
"Inca Tooling Contract" means a contract
between the Vendors and Inca Tooling Limited
relative to the latter's manufacture and
supply of a tool to produce a GT8C row 2
rotor ceramic core dye.
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"Initial Payment" means the sum of 41,000,000
GBP payable by the Purchaser to the Vendors
on the Completion Date in cleared funds.
"Intellectual Property Rights" means all
industrial and intellectual property rights
of the Vendors used as at the Completion Date
exclusively for the purposes of the Business
including the Patents, Trade Marks,
registered designs and copyrights in any part
of the world, the Manufacturing Know-How and
the copyright in all drawings, plans,
specifications and designs owned by the
Vendors and used wholly and exclusively for
the purposes of the Business prior to the
Completion Date.
"Interim Period" means the period from and
including 1 July 1996 to and including the
Completion Date.
"Leased Assets" means any asset (other than
real property and any item forming part of
the Free Issue Materials) used by the Vendors
in connection with the Business at the
Completion Date which is not owned by them
including each of those assets listed in
Schedule 2.
"Management Accounts" means the unaudited
management accounts balance sheet of AETC as
at 31 March 1996 and the related statement of
profit and loss for the three month period
then ending copies of which are attached to
the Disclosure Letter.
"Manufacturing Know-How" means all technical
know-how, knowledge and expertise (including
manufacturing techniques, industrial
information and trade secrets) owned and used
by the Vendors exclusively in the Business at
the Completion Date.
"Patents" means the patents together with
applications therefor relating exclusively to
the Business, brief details of which are set
out in Part 1 Schedule 4.
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"Patent Assignments" means the assignments of
the Patents in the Agreed Terms entered into
on the Completion Date by each of AETC, AE
plc and T&N Technology Limited with the
Purchaser.
"Permitted Head Office Services" means those
services provided by T&N to the Business from
time to time but excluding any such service
as relate to the provision of finance or
insurance coverage or is of a general
management nature.
"Petty Cash" means the petty cash float of
the Business at the Completion Date.
"Product Liability" means relative to any
item forming part of the stock-in-trade of
the Business at the Effective Date a
liability arising after that item has been
sold, free issued to a third party or
otherwise realized on the grounds that:-
(i) that item was not:-
(a) fit for its purpose; or
(b) of satisfactory quality; or
(c) in compliance with the terms
of the contract governing its sale,
free issue or other realisation; or
(d) as to its safety of such
standard as persons are reasonably
entitled to expect; or
(ii) that item was defective or
inherently dangerous but always
excluding any Product Warranty
Liability relative to that item.
"Product Warranty Liability" means relative
to a contract made between either of the
Vendors or ESL and a third party an
obligation or liability of the Vendor in
question or ESL under that contract to
repair, rework, replace or give credit for
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the invoiced value of goods delivered to that
party in the course of performing that
contract in the event that those goods fail
to comply with the terms of that contract.
"Properties" means those properties referred
to in paragraph 1 of Schedule 5 and all
buildings thereon and improvements thereto.
"Purchaser" means AL.
"Purchaser's Group" means
(i) PCC;
(ii) any company which is a Subsidiary
of PCC;
(iii) any company over which PCC has
control within the meaning of
Section 840 Income and Corporation
Taxes Act 1988;
(iv) any company which becomes one of
the companies described in (ii) or
(iii) above
"Purchase Balance Sheet" means the balance
sheet set forth in the column entitled
"Purchase Balance Sheet" on Schedule 3.
"Purchase Balance Sheet Net Worth" means
28,313,000 GBP.
"ROT Stock" means the stocks, used in or for
the purposes of or in connection with the
Business at the Completion Date including raw
materials, work in progress and finished
goods which have been supplied to the Vendors
subject to effective reservation of title in
favour of their supplier but always excluding
any item which forms part of the Free Issue
Materials.
"Regulations" means the Transfer of
Undertakings (Protection of Employment)
Regulations 1981 (as amended).
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"Residual Assets" means all assets owned by
the Vendors and used in the Business as at
the Completion Date other than those
identified in sub-clauses 2.1.1-2.1.10
(inclusive) and the Excluded Assets.
"Stock Exchange" means London Stock Exchange
Limited.
"Stocks" means the stocks wherever located,
used in or for the purposes of or in
connection with the Business at the
Completion Date including raw materials, work
in progress, finished goods, consumable
stores and any tooling being manufactured
pursuant to a Contract at the cost of a
customer of the Business and in respect of
which the Vendors have yet to despatch an
invoice to that customer but excluding the
ROT Stock and any item which forms part of
the Free Issue Materials.
"Stocktake Date" means 10 August 1996.
"Subsidiary" with respect to each of the
Vendors, means a subsidiary as defined in the
Companies Act 1985 s 736. Subsidiary with
respect to PCC means a company or corporation
of which a majority of shares are owned by
PCC, directly or indirectly.
"Taxation" means all sums due by the Vendors
to H.M. Inland Revenue, H.M. Customs & Excise
and any other taxation authority whether in
respect of Income or Corporation Tax, Pay as
You Earn, National Insurance, VAT or any
other form of taxation (whether national or
foreign) in respect of any period prior to
the Effective Date or any taxation due by the
Vendors as a result of effecting the sale
hereunder.
"Trade Marks" means the trade marks relating
exclusively to the Business, brief details of
which are set out in Part 2 Schedule 4.
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"Trade Mark Assignment" means the trade mark
assignment in the Agreed Terms entered into
on the Completion Date by AETC (1) and the
Purchaser (2).
"VAT" means value added tax.
"Valuation Principles" means the accounting
policies and principles set out in
Schedule 8.
"Vendors" means T&N and AETC.
"Vendors' Group" means:-
(i) T&N;
(ii) any company which is a Subsidiary
of T&N;
(iii) any company over which T&N has
control within the meaning of
Section 840 Income and Corporation
Taxes Act 1988;
(iv) any company which becomes one of
the companies described in (ii) or
(iii).
"Warranties" means the warranties of the
Vendors specified in Schedules 6 and 7.
1.1.2 except where the context otherwise requires,
words denoting the singular include the
plural and vice versa; words denoting any
gender include all genders; words denoting
persons include firms and corporations and
vice versa;
1.1.3 unless otherwise stated, a reference to a
clause, sub-clause or Schedule is a reference
to a clause or a sub-clause of, or a
Schedule to, this agreement;
1.1.4 clause headings are for ease of reference
only and do not affect the construction of
this agreement;
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1.1.5 any undertaking given by the Purchaser in
this Agreement to act or omit to act in any
way should be read and construed so as to
include in the event of any right or
entitlement or obligation relative to the
Assets or the Business becoming vested in or
as the case may be assumed by a member of the
Purchaser's Group an additional undertaking
on the part of the Purchaser to procure that
that member of the Purchaser's Group so acts
or omits to act.
2 Agreement for sale
2.1 Subject to the terms and conditions of this agreement,
the Vendors with full title guarantee (subject in the
case of the ROT Stocks and the Leased Assets to the
interest of the owner or any superior lessor of those
stocks and assets) shall sell to the Purchaser which
shall purchase at the Completion Date the Business as a
going concern together with:
2.1.1 the Goodwill;
2.1.2 the Properties;
2.1.3 the Fixed Assets;
2.1.4 the Stocks and the ROT Stocks;
2.1.5 the benefit, subject to the burden, of the
Contracts;
2.1.6 the Intellectual Property Rights other than
the Manufacturing Know-How;
2.1.7 the Debtors;
2.1.8 the Leased Assets;
2.1.9 the Petty Cash;
2.1.10 the Manufacturing Know-How;
2.1.11 the Residual Assets;
but excluding the Excluded Assets.
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2.2 Subject to the terms and conditions of this
agreement, ESL shall with full title guarantee
simultaneously sell to the Purchaser which shall
purchase the ESL Book Debts.
2.3 The provisions of Parts 3 and 4 of Schedule 5
shall more particularly apply in relation to the sale
of the Properties.
2.4 Title to and the risk in the Assets
(excluding the ROT Stock) shall pass to the Purchaser
with effect from the Completion Date. Risk in the ROT
Stock will pass to the Purchaser from the Completion
Date and title in any item comprised in the ROT Stock
will pass to the Purchaser immediately upon either of
the Vendors acquiring title to it.
2.5 To the extent that:-
2.5.1 an anticipated receipt of proceeds under an
insurance policy effected prior to Completion
by either of the Vendors in respect of any of
the Assets is taken into account in the
Effective Date Balance Sheet; and
2.5.2 such proceeds are actually received by either
of the Vendors after Completion
the Vendors shall pay to the Purchaser a sum equal
to the amount so received.
2.6 To the extent that at any time after Completion
the Vendors receive proceeds under an insurance policy
maintained by them relative to employer's liability or
motor vehicles in respect of some incident occurring
during the Interim Period, the Vendors shall pay to the
Purchaser a sum equal to the amount so received.
3 Purchase consideration
3.1 The Consideration shall be the aggregate of the
Initial Payment plus or less (as the case may be) the
Balance together with the other obligations assumed and
undertakings, indemnities and covenants given by the
Purchaser in this agreement. ESL hereby appoints T&N
as its agent to accept payment on its behalf of such
proportionate part of the Consideration payable by the
Purchaser in respect of the ESL Book Debts.
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3.2 The cash element of Consideration shall be paid as
follows:
3.2.1 the Initial Payment by the Purchaser to T&N
on the Completion Date; and
3.2.2 the Balance in cleared funds in accordance
with clause 4.
3.3 The cash element of the Consideration taking into
account the Purchaser's obligation to discharge the
Creditors shall be allocated as follows:-
3.3.1 Goodwill - the sum derived by subtracting the
aggregate of the amounts referred to in
clauses 3.3.2 - 3.3.11 (both inclusive) from
the aggregate of the cash element of the
Consideration (as adjusted pursuant to
clause 4) and the value of the Creditors as
set out in the Final Balance Sheet.
3.3.2 As to the Properties, that situate at:-
a) Victoria Avenue
Yeadon (registered land) - 178,000 GBP
b) Victoria Avenue
Yeadon (unregistered land) - 3,469,000
GBP
c) Magna Works
Leicester - 1,835,000 GBP
d) Unit 1A Yeadon
Industrial Estate - 1,213,000 GBP
3.3.3 Intellectual Property Rights other than the
Manufacturing Know-How 7.00 GBP;
3.3.4 Contracts (including those agreements to
which the Leased Assets are subject) l.00
GBP;
3.3.5 Petty Cash - such amount as set out in the
Final Balance Sheet;
3.3.6 Stocks and ROT Stock - such amount as set out
in the Final Balance Sheet;
3.3.7 Fixed Assets - such amount as set out in the
Final Balance Sheet;
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3.3.8 Debtors - such amount as set out in the Final
Balance Sheet;
3.3.9 Residual Assets l.00 GBP;
3.3.10 ESL Book Debts - such amount as set out in
the Final Balance Sheet;
3.3.11 Manufacturing Know-How - 2,000,000 GBP.
3.4 The Consideration shall be exclusive of any VAT
which (if payable) shall be paid by the Purchaser in
addition to the Consideration referred to in this
clause 3.
4 Price Adjustment
4.1 No later than 15 September 1996 the Purchaser will
prepare and supply to the Vendors an Effective Date
Balance Sheet.
4.2 The Vendors shall have 42 days following receipt
of the Effective Date Balance Sheet to notify the
Purchaser of any dispute with the Effective Date
Balance Sheet. In order to facilitate the Vendors'
review of the Effective Date Balance Sheet, the
Purchaser will provide to the Vendors (a) full access
to those working papers of the Purchaser and of any
accountant or adviser engaged by it; and (b) reasonable
access during normal working hours on prior notice
having been given to any employee of the Purchaser or
PCC who has been engaged in the preparation of the
Effective Date Balance Sheet of whom the Vendors wish
to raise queries, in each case relative to the
preparation of the Effective Date Balance Sheet. If
the Vendors fail to notify the Purchaser of any such
dispute within such 42-day period, or, prior to the
expiration thereof, notify the Purchaser in writing
that no such dispute exists, "the Effective Date
Balance Sheet" shall be deemed to be the "Final Balance
Sheet". In the event that the Vendors shall so notify
the Purchaser of any dispute, the Purchaser and the
Vendors shall co-operate in good faith to resolve such
dispute as promptly as practicable. In the event that
the Purchaser and the Vendors are unable to resolve any
such dispute within 20 days of the Vendors' delivery of
such notice, such dispute may be referred by either the
Vendors or the Purchaser for resolution to an
accounting firm mutually acceptable to them or, failing
such mutual
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acceptability, appointed by the President (or in his
absence the next most senior officer available) of the
Institute of Chartered Accountants of England and Wales
(the "Independent Accounting Firm"), which firm shall
be instructed to determine the Effective Date Balance
Sheet in accordance with the policies referred to in
clause 4.6 and to make such determination as soon as
practicable. The determination of the Independent
Accounting Firm (which shall act as an expert and not
an arbitrator and shall receive any written submissions
made by either the Vendors or the Purchaser) shall be
final and binding (in the absence of manifest error).
The Effective Date Balance Sheet, as it may be modified
by resolution of any disputes by the Purchaser and the
Vendors or by the Independent Accounting Firm pursuant
hereto, shall be the "Final Balance Sheet." The fees
of the Independent Accounting Firm shall be borne and
paid for by the Vendors in the event that the Effective
Date Net Worth accords more closely to the Purchaser's
submission as to that worth than it does to the
Vendors' but otherwise shall be borne by the Purchaser.
4.3 Where in connection with the Effective Date
Balance Sheet a dispute arises as to a matter of law
then clause 4.2 shall be read and construed as if each
and every reference within that clause to
(a) "an accounting firm" or "firm" was a
reference to "a leading counsel"
(b) "the Institute of Chartered Accountants
of England and Wales" was a reference to "the Law
Society of England and Wales"
(c) "the Independent Accounting Firm" was a
reference to "the Leading Counsel".
4.4 In the event that the Effective Date Net Worth is
more than the Purchase Balance Sheet Net Worth, then
the Purchaser shall transfer to the Vendors a cash
amount equal to the amount by which the Effective Date
Net Worth is more than the Purchase Balance Sheet Net
Worth. In the event that the Effective Date Net Worth
is less than the Purchase Balance Sheet Net Worth, the
Vendors shall transfer to the Purchaser a cash amount
equal to the amount by which the Effective Date Net
Worth is less than the Purchase Balance Sheet Net
Worth. Such transfers shall be made to the account
designated in writing for such purpose within two
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business days after the Final Balance Sheet is either
agreed between the Vendors and the Purchaser or is
determined by the Independent Accounting Firm by wire
transfer in immediately available funds of the amount
of such differences as determined pursuant to the
preceding sentences, together with interest thereon
from the Effective Date to the due date of payment
calculated at the rate of 1% per annum above the base
rate of National Westminster Bank plc for the time
being prevailing. The parties agree that if,
notwithstanding the existence of a dispute pursuant to
clause 4.2, it is undisputed that either the Purchaser
or the Vendors shall owe the other at least a
determinate amount (the "Undisputed Amount"), the party
owing the Undisputed Amount shall promptly pay such
amount, together with interest thereon in the manner
set forth in the preceding sentence, and any amount
which may subsequently be determined to be due pursuant
to this clause shall be reduced by the Undisputed
Amount where appropriate.
4.5 If any payment to be made pursuant to clause 4.4
is not made on its due date for payment then it shall
bear interest from that due date to the date of actual
payment (whether before or after any judgement) at the
rate of 3% per annum above the base rate of National
Westminster Bank plc for the time being prevailing.
4.6 The Effective Date Balance Sheet shall be prepared:-
(a) as if the Effective Date were the end of
an accounting period;
(b) in accordance with the Valuation
Principles;
(c) insofar only as a matter is not dealt
with by paragraph (b) above in accordance with the
principles and policies adopted in the Accounts;
(d) insofar only as a matter is not dealt
with by paragraphs (b) and (c) above in accordance
with generally accepted accounting principles
prevalent in the United Kingdom.
5 Completion
5.1 The sale and purchase shall be completed immediately
upon exchange of this agreement when all the matters
set out in this Clause 5 shall be effected.
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5.2 The Vendors shall deliver to the Purchaser:
5.2.1 those of the Assets capable of transferring
by physical delivery together with the Free
Issue Materials at the relevant Property;
5.2.2 all its books of account, copy pay-roll
records, income records, stock and other
records, information relating to customers
and suppliers, relevant computer programs
(including any Lotus Notes programs) and
other books and documents which relate to the
Business (other than minute books relating to
directors' and shareholders' meetings and
statutory books) at the relevant Property;
5.2.3 all its manufacturing programmes, designs and
drawings, plans instructional and promotional
material, sales publications, advertising
materials, terms and conditions of sale and
manufacturing programmes other technical
material and sales matter which relate to the
Business, together with any plates, blocks,
negatives and similar material relating to
them at the relevant Property with the
exception of the blueprints to the vacuum
furnace NC control system which from
Completion shall be held to the Purchaser's
order;
5.2.4 information relating to all sales
distributors and agents, and copies of all
the current agreements with the distributors
and the agents at the relevant Property;
5.2.5 the VAT records referred to in Clause 6.7 at
the relevant Property;
5.2.6 all records of National Insurance and PAYE
relating to all the Employees at the relevant
Property;
5.2.7 the Disclosure Letter;
5.2.8 the documents referred to in the epitome of
title already supplied to the Purchaser;
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5.2.9 the original Patent Assignments and Trade
Mark Assignment duly executed by the
appropriate parties;
5.2.10 the two original transfers of Victoria Works
(as defined in Schedule 5) duly executed by
the appropriate parties;
5.2.11 the original transfer of Magna Works (as
defined in Schedule 5) duly executed by the
appropriate parties;
5.2.12 an original statutory declaration (lost land
certificate to title No. WYK 98838) given by
Miss J M Hogg;
5.2.13 an original statutory declaration
(boundaries) given by Mr M Larner;
5.2.14 an original statutory declaration (First Car
Park Lease) given by Miss J M Hogg;
5.2.15 an original statutory declaration (Second Car
Park Lease) given by Miss J M Hogg; and
5.2.16 a certified copy of resolutions of the boards
of directors of each of the Vendors approving
the sale of the Business and Assets on the
terms of this agreement and authorizing the
persons who have executed this agreement to
do so.
5.3 Upon completion of the matters referred to above:-
5.3.1 the Purchaser shall deliver to the Vendors:
5.3.1.1 the Initial Payment;
5.3.1.2 a counterpart of the Patent
Assignments and Trade Mark Assignment
duly executed by the Purchaser;
5.3.1.3 a certified copy of
resolutions of the board of directors of
the Purchaser approving the purchase of
the Business and Assets on the terms of
this agreement and authorising the person
who has executed this agreement to do so;
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5.3.1.4 a release given by ABN Amro in
favour of T&N relative to an indemnity
given by T&N to ABN Amro in respect of
certain performance bonds or guarantees
issued on behalf of AETC by ABN Amro and
more particularly described in the
Disclosure Letter or other security
reasonably satisfactory to T&N;
5.3.2 PCC shall deliver to the Vendors a certified
copy of resolutions of the board of directors
of PCC approving the terms of this agreement
and authorising the person who has executed
this agreement to do so;
5.4 The Purchaser and the Vendors shall not be obliged
to complete the sale and purchase of any of the Assets
unless the purchase of the Business and Assets is
completed in accordance with Clause 5.
5.5 The Purchaser or the Vendors may in its or their
absolute discretion waive any requirement contained in
Clause 5.2 or as the case may be Clause 5.3.
6 Value Added Tax
6.1 The parties will use all reasonable endeavours to
procure that the sale of the Assets and the Business is
treated as a transfer of a business as a going concern
for the purposes of Section 49 of the Value Added Tax
Act 1994 and Article 5 of the Value Added Tax (Special
Provisions) Order 1995 save that neither party shall be
required by virtue of this clause 6.1 to make any
appeal to any court or tribunal against any
determination of H.M. Customs and Excise that the sale
does not fall to be so treated.
6.2 If VAT should be chargeable on the sale under this
agreement (or any part of it) the Purchaser agrees
that:-
6.2.1 such VAT will be in addition to the total amount
payable;
6.2.2 within 7 days of production by the Vendors of an
appropriate VAT invoice the Purchaser will pay
the amount of such VAT to the Vendors.
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6.3 The Purchaser declares that it will either be
registered for VAT purposes at the Completion Date, or
as a result of Completion will become liable to be so
registered, and that the Purchaser shall upon, and
immediately after, Completion use the Assets to carry
on the same kind of business as that carried on by the
Vendors in relation to the Assets prior to the
Completion Date.
6.4 The Vendors declare that they are duly registered
for VAT at the Completion Date and immediately prior to
the Completion Date the Vendors used the Assets for the
purposes of the Business and that no election has been
made to opt to tax any of the Properties in accordance
with Schedule 2 of the Value Added Tax Act 1994.
6.5 In the event of:-
6.5.1 any failure on the part of the Purchaser to
comply with the obligations undertaken and
declarations made by it resulting in VAT being
charged on the sale of the Assets or some part
of them, and interest and/or penalties being
charged in respect thereof as a consequence of
such failure then such interest and/or penalties
shall be payable by the Purchaser;
6.5.2 any failure on the part of the Vendors to comply
with the obligations undertaken and declarations
made by it resulting in VAT being charged on the
sale of the Assets or some part of them, and
interest and/or penalties being charged in
respect thereof as a consequence of such failure
then such interest and/or penalties shall be
payable by the Vendors;
6.5.3 any such interest and/or penalties becoming
payable in respect of any case other than under
clause 6.5.1 and 6.5.2 these shall be borne by
the Vendors and the Purchaser equally.
6.6 Any VAT payable in respect of goods and services
supplied or deemed to be supplied by the Vendors (other
than pursuant to this agreement) prior to the
Completion Date and any interest payable or penalties
attributable to such VAT shall be paid by the Vendors
to HM Customs and Excise and the Vendors shall keep the
Purchaser fully indemnified accordingly.
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6.7 The Vendors will on the Completion Date deliver to
the Purchaser all the records of the Business for VAT
purposes which are required by Section 49 of the Value
Added Tax Act 1994.
7 Debtors and ESL Book Debts
7.1 The Vendors or ESL (as the case may be) will if
requested by the Purchaser execute a formal assignment
to the Purchaser of the Debtors or the ESL Book Debts
(as the case may be). In respect of such assignment
the Purchaser confirms that it will be responsible for
any stamp duty payable and for informing each of the
debtors of such assignment pursuant to s136 Law of
Property Act 1925.
7.2 The Purchaser will be entitled to collect the
Debtors and the ESL Book Debts for its own account and
the Vendors and ESL shall at the Purchaser's expense
give to the Purchaser all such reasonable assistance
short of the instigation of legal proceedings for a
period of six months immediately following Completion
as the Purchaser may reasonably require to enable the
Purchaser to collect the Debtors and ESL Book Debts.
The Vendors and ESL shall take no other action in
relation to the Debtors or ESL Book Debts other than as
a result of the operation of Clause 7.4.
7.3 Any sums received by the Vendors or ESL after
Completion in relation to any of the Debtors or ESL
Book Debts shall belong to the Purchaser. The Vendors
or ESL shall remit the same during banking hours on the
first normal banking day following:-
7.3.1 clearance of those sums; and
7.3.2 a request of the Purchaser so to
do.
7.4 At any time after 19 January 1997 but before 19
April 1997 the Purchaser may by notice in writing
require the Vendors or ESL to take transfer 7 days
after the date of the notice of the Purchaser's right
title and interest in any of the Debtors or ESL Book
Debts which then remains uncollected in consideration
of the Vendors or ESL paying to the Purchaser the sum
derived by application of the formula
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x - (y + z)
where
`x' represents the value ascribed to that Debtor or ESL
Book Debts in the Final Balance Sheet taking into
account any applicable provision;
`y' represents the amount realised in respect of that
Debtor or ESL Book Debt since the Effective Date;
`z' represents the anticipated liability of the Vendors or
ESL to stamp duty relative to the said transfer
and in the event of any such transfer being effected
the Purchaser shall immediately deliver to the Vendors
or ESL such documents (other than this agreement) then
in its possession as prove title to the Debtor or ESL
Book Debt in question.
7.5 In the event of delay by the Vendors or ESL in
remitting sums referred to in clauses 7.3 or 7.4 the
Vendors or ESL shall pay interest (before as well as
after judgement) on the sums due and unpaid until the
date of actual payment at the rate of 3% per annum
above the base rate of National Westminster Bank Plc
for the time being prevailing.
8 Obligations Assumed
8.1 On the Completion Date and subject to the terms and
conditions of this agreement the Purchaser assumes and
agrees to pay, perform and discharge as and when due
and to indemnify and hold harmless the Vendors from and
against any and all losses, costs, liabilities and
expenses arising out of or in connection with the
following liabilities and obligations of the Vendors
(the "Assumed Liabilities"):-
8.1.1 the Creditors;
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8.1.2 the liabilities of the Vendors (including
liabilities in respect of Taxation) to the
extent that the same are reserved against on
the Final Balance Sheet;
8.1.3 all obligations of the Vendors under any of
the Contracts other than obligations forming
part of the Air Products Liability or the GTC
Liability;
8.1.4 any and all Product Liabilities; and
8.1.5 any and all Product Warranty Liabilities
relative to goods delivered or services
performed by either of the Vendors in the
course of the Business prior to the Effective
Date.
8.2 The Vendors hereby undertake to pay and discharge
and also to indemnify and hold harmless the Purchaser
from and against any and all losses, costs, liabilities
and expenses and the Purchaser shall not assume or
become responsible for any liability, obligation,
commitment or expense of the Vendors of any kind known
or unknown now existing or hereafter arising from the
following (the "Excluded Liabilities"):-
8.2.1 any liabilities or obligations arising out of
or relating to the Excluded Assets, the Air
Products Liability, the GTC Liability and the
Howmet Liability;
8.2.2 any liabilities or obligations of the Vendors
relating to or arising out of operation or
ownership of the Business prior to the
Effective Date but excluding any liabilities
or obligations which the Purchaser has
expressly agreed to assume under this
agreement;
8.2.3 any liabilities or obligations of the Vendors
in respect of costs relating to or arising
out of the sale effected hereunder.
8.3 The Purchaser hereby undertakes to pay and
discharge and also to indemnify and hold harmless the
Vendors from and against any and all losses, costs,
liabilities
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and expenses and the Vendors shall not assume or become
responsible for any liability, obligation, commitment
or expense of the Purchaser of any kind known or
unknown arising from any liabilities or obligations of
the Purchaser relating to or arising out of the
operation of the Business from the Effective Date.
8.4 The Vendors and the Purchaser acknowledge that
their respective obligations relative to the Employees
shall be governed only by clauses 8.1.2 and 9
notwithstanding any other provision of this agreement.
8.5 The provisions of Schedule 9 shall apply in
relation to Clean-up (as defined in that Schedule).
8.6 The Vendors shall indemnify and hold harmless the
Purchaser from and against all losses, cost,
liabilities and expenses, in the event that the
Valuation Principles do not accord (other than as
identified in Schedule 10) with those accounting
principles applied in the preparation of the Accounts.
9 Employees
9.1 The Purchaser will indemnify and hold harmless the
Vendors against all claims, actions, proceedings,
costs, demands, interest or liabilities arising
directly or indirectly from any failure on the part of
the Purchaser to comply with its obligations under
Regulation 10 relative to information requested of it
by the Vendors.
9.2 The parties acknowledge that the transfer of the
Business effected hereby is governed by the Regulations
and in accordance with the Regulations, the contracts
of employment of the Employees shall be transferred to
the Purchaser with effect from the Completion Date.
9.3 The Purchaser shall indemnify and hold harmless
the Vendors from all actions, proceedings, costs,
claims, demands, interest or liabilities arising
directly or indirectly from any action or omission of
the Purchaser in respect of the Regulations on or after
the Completion Date.
9.4 Except as provided by Clause 9.1, the Vendors
shall indemnify and hold harmless the Purchaser from
all
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actions, proceedings, costs, claims, demands, interest
or liabilities arising directly or indirectly from any
action or omission of the Vendors in respect of the
Regulations on or before the Completion Date.
9.5 If any contract of employment between the Vendors
and any Excluded Employee has effect between such
Excluded Employee and the Purchaser as a result of the
operation of the Regulations then:-
9.5.1 the Purchaser shall notify the Vendors within
14 days of the Purchaser becoming aware that
the Regulations apply to such Excluded
Employee;
9.5.2 the Purchaser may within 14 days of providing
the notification referred to in Clause 9.5.1
give notice to terminate such Excluded
Employee's contract of employment; and
9.5.3 the Vendors shall keep the Purchaser fully
indemnified in respect of such termination
and against any such sums payable to or in
relation to such person in respect of his
employment by the Vendors prior to Completion
or by the Purchaser from Completion to the
date of such termination provided always that
in effecting such termination the Purchaser
shall consult with and comply with any
reasonable request of the Vendors.
9.6 The Purchaser shall keep the Vendors fully
indemnified in respect of:-
9.6.1 any change in the working conditions of the
Employees occurring after the Completion Date
including the change in the identity of their
employer occurring on or after the Completion
Date.
9.6.2 any breach by the Purchaser of any obligation
under or in connection with any contract of
employment of any of the Employees after the
Completion Date;
9.6.3 any tortious act including any act of
negligence of the Purchaser in relation to
any of the Employees after the Completion
Date;
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9.6.4 any claim brought by any Employee after the
Completion Date under the Equal Pay Act 1970
the Equal Pay Directive and Article 119 of
the Treaty of Rome provided that the
Purchaser only indemnifies the Vendors in
respect of that proportion of the liability
computed on a pro rata temporary basis that
is referable to the period when that Employee
was in the employment of the Purchaser or any
member of the Purchaser's Group;
9.6.5 any act or omission of the Vendors which is
effected or carried out or has occurred at
the written direction or request of the
Purchaser prior to the Completion Date
and for the purposes of this clause and clause 8.4 and
Schedule 7 only the word "Employee" shall also include
those Excluded Employees who become and remain
employees of the Purchaser by virtue of the Purchaser
electing not to serve notice terminating their
employment within the 14 day period referred to in
Clause 9.5.2.
9.7 The Vendors shall keep the Purchaser fully
indemnified in respect of:-
9.7.1 any breach by the Vendors of any obligation
under or in connection with any contract of
employment of any of the Employees before the
Completion Date;
9.7.2 any tortious act including any act of
negligence of the Vendors in relation to any
of the Employees before the Completion Date;
9.7.3 any claim brought by any Employee after the
Completion Date under the Equal Pay Act 1970
the Equal Pay Directive and Article 119 of
the Treaty of Rome provided that the Vendors
only indemnify the Purchaser in respect of
that proportion of the liability computed on
a pro rata temporary basis that is referable
to the period when that Employee was in the
employment of the Vendor or any member of the
Vendors' Group;
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9.7.4 any claim brought by C Simon, A Fordham or G
S Pooni in respect of his employment in the
Business;
9.7.5 any claim brought by either I MacGregor or P
T Whitson in respect of his employment by the
Vendor or the Purchaser in the Business
provided always that:-
9.7.5.1 the Purchaser does not issue any notice
terminating such employment until the
earliest of
(i) the first anniversary of the
Completion Date;
(ii) the date on which the trustee
of the T&N Retirement Benefit
Scheme (1989) confirms the
eligibility of I MacGregor or as
the case may be P T Whitson for
ill health early retirement under
the rules of that scheme; and
(iii) the date on which such notice of
termination would have been
issued as a result of adopting a
practice after Completion
consistent with the Vendors'
habitual practice prior to
Completion when considering the
action to be taken in respect of
employees who have been absent
from working in the Business for
an extended period for the
alleged reason of ill-health;
9.7.5.2 in effecting any such termination the
Purchaser consults with and complies
with any reasonable request of the
Vendors;
9.7.6 any claim made by either K MacRae or S
Walmsley in the event of the Purchaser
terminating his employment in the Business on
the grounds of incapacity provided always
that:-
9.7.6.1 the decision to effect such a
termination has been reached in a manner
consistent with the Vendors habitual
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practice prior to Completion when
considering the action to be taken in
respect of employees who have been
absent from working in the Business for
an extended period for the alleged
reason of ill health;
9.7.6.2 in effecting any such termination the
Purchaser consults with and complies
with any reasonable request of the
Vendors.
9.8 The Vendors and the Purchaser agree with each
other that the provisions of Schedule 7 (pensions)
shall apply.
10. Title and Contracts
10.1 The Vendors shall take all reasonable steps and co-
operate fully with the Purchaser to ensure that it
obtains the full benefit of the Business and Assets and
if after the Completion Date the Vendors are requested
by the Purchaser they shall (in so far as the Vendors
are able to do so) at their own expense (other than
where the expense relates to the subject matter of the
Patent Assignments or the Trade Mark Assignment or any
documents conveying title to the Properties) execute
such documents and take such other steps (or procure
other necessary parties so to do) as are necessary or
appropriate for vesting in the Purchaser all its rights
and interests in the Assets.
10.2 Insofar as the Assets comprise the benefit of
Contracts which cannot effectively be assigned to the
Purchaser without the consent of a third party or
except by an agreement of novation:
10.2.1 the Vendors and the Purchaser shall (at the
Vendors' expense) use all reasonable
endeavours to obtain consent or to procure a
novation (but shall not amend the contract or
commit the Purchaser to pay additional sums
without the consent of Purchaser);
10.2.2 unless and until consent is obtained or the
Contracts are novated the Purchaser shall,
for its own benefit and to the extent that
the Contracts permit, perform on behalf of
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the Vendors (but at the Vendors' expense) all
the obligations of the Vendors arising after
the Completion Date and indemnify the Vendors
against all reasonable costs, proceedings,
claims, demands and expenses which may be
incurred by the Vendors as a result of any
failure on the part of the Purchaser to
perform or comply with any such obligation of
the Vendors which falls to be performed after
the Completion Date. The Vendors shall co-
operate fully with the Purchaser so as to
provide to the Purchaser the benefit of the
Contracts.
11. Warranties by the Vendors
11.1 The Vendors warrant to the Purchaser that save as
set out in the Disclosure Letter the Warranties are
true and fairly represent the matters to which they
relate
11.2 Where any Warranty refers to the knowledge,
information, awareness or belief of the Vendors, the
Vendors undertake that they have made due and careful
enquiry into the subject matter of the Warranty. For
the purposes of this agreement, "due and careful
enquiry" means that the Vendors have made enquiries of
Mr P J Worsley, Mr M Larner, D M Pawlowski, A G
McMahon, I Dorman, J Rhodes and D C Pratt who are aware
or ought to be aware of the subject matter of the
Warranty.
11.3 The Purchaser acknowledges and agrees that:
11.3.1 The Warranties are the only
representations, warranties or other
assurances of any kind given by the Vendors
on which the Purchaser may rely in bringing a
claim under the Warranties;
11.3.2 Save for the Warranties, the
Vendors' replies to the Purchaser's pre
contract enquiries about the Properties as
attached to the Disclosure Letter and other
contractual obligations of the Vendors made
in this Agreement, no expression of opinion,
promise or forecast made by or on behalf of
the Vendors may form the basis of or be
pleaded in connection with any claim by the
Purchaser under or in connection with this
agreement; and
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11.3.3 Any claims by the Purchaser or
any person deriving title from the Purchaser
in connection with the Warranties shall be
subject to the provisions of this Clause 11.
11.4 The maximum aggregate liability of the Vendors in
respect of all breaches of
the Warranties (other than the Environmental
Warranties) shall not in any event exceed the sum of
27,000,000 GBP.
11.5 No claim arising out of the Warranties (other than
the Environmental Warranties) will lie against the
Vendors unless the total amount of the liability of the
Vendors relative to such claims in aggregate exceeds
250,000 GBP in which event the Vendors shall be liable
for the whole amount and not merely the excess over
250,000 GBP.
11.6 The Vendors shall be under no liability hereunder
(other than in respect of the Environmental Warranties)
unless the Vendors shall have been given written notice
by the Purchaser within twenty-four months of the
Completion Date stating in reasonable detail the
grounds for such liability.
11.7 In the event that the Purchaser shall be in
receipt of any claim which in the reasonable opinion of
the Purchaser may constitute or give rise to any
liability hereunder the Purchaser shall:
11.7.1 as soon as practicable notify
the Vendors giving full details so far as
practicable of the circumstances or the
grounds for any claim or potential claim;
11.7.2 thereafter keep the Vendors
notified of all material developments thereto
and, on request, supply the Vendors with
copies of all relevant correspondence
relating thereto; and
11.7.3 not settle or compromise any
such claim without the prior written consent
of the Vendors such consent not to be
unreasonably withheld or delayed.
11.8 The Purchaser shall take subject to being
reasonably satisfied as to security for costs such
action as the
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Vendors may reasonably request to avoid, dispute,
resist, compromise or defend any claim, threat or
demand which may give rise to any claim against the
Vendors or either of them hereunder.
11.9 The Vendors shall not be liable in respect of any claim
for breach of the Warranties to the extent that the
same is capable of remedy by the Vendors unless the
Purchaser shall first afford to the Vendors such
opportunity as is reasonable to remedy the breach
complained of and the Vendors shall have failed to do
so within 30 days after being notified of the complaint
provided always that for the avoidance of doubt this
clause shall not preclude the Purchaser's giving of
notice under Clause 11.6.
11.10 The Vendors have no liability under the Warranties to
the extent that any claim or the events giving rise to
any claim are due to, or are increased, exacerbated,
enhanced or caused by:-
11.10.1 any act, omission or
transaction carried out by or on behalf of
the Purchaser (including any change in the
nature of the Business or in the manner of
conducting the same) after the Completion
Date; and
11.10.2 the Purchaser failing to
reduce or mitigate any loss in relation to
any claim in respect of any breach of any of
the Warranties;
11.10.3 the passing of or any change
in, any legislation after the Completion Date
or any change in the accounting policy or
practice of the Business after the Completion
Date.
11.11 The Vendors shall have no liability under the
Warranties to the extent that the claim or the events
giving rise to the claim are covered by a provision in
the Final Balance Sheet but where the value of the
claim exceeds such provision the Vendors shall have
such a liability relative to the excess.
11.12 If any breach or any claim arising under the Warranties
shall arise by reason of some liability which at the
time the breach is notified to the Vendors is
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contingent only, then the Vendors shall not be under
any obligation to make any payment to the Purchaser
thereunder until such time as the contingent liability
ceases to be contingent.
11.13 Where in relation to any matter which has been the
subject of any claim hereunder against the Vendors by
the Purchaser resulting in the Vendors making payment
to the Purchaser and the Purchaser subsequently
recovering any sum from a third party (including an
insurer) the Purchaser shall repay forthwith to the
Vendors any sums paid by them (less any reasonable
costs and expenses incurred by the Purchaser in
recovering any sum) in respect of such claim (or an
appropriate part thereof). In the event of a delay by
the Purchaser to remit such sums as referred to in this
clause 11.13 the Purchaser shall pay interest (before
as well as after judgment) on the sums due and unpaid
until the date of actual payment at the rate of 3% per
annum above the base rate of the National Westminster
Bank plc for the time being prevailing.
11.14 The Vendors and the Purchaser hereby relinquish and
waive any rights of set-off or retention which they
might otherwise have in respect of any claim against or
out of any payments whatsoever which either party is or
may be obliged to make or procure to be made to the
other pursuant to this agreement.
11.15 The amount of any successful claim against the Vendors
under this agreement shall constitute or be deemed to
constitute a reduction in the cash element of the
Consideration and shall in particular serve to reduce
that part of the cash element of the Consideration
allocated under clause 3.3 to the Asset to which the
subject matter of the claim most closely relates.
11.16 The Purchaser shall not be entitled to recover damages
or obtain reimbursement, restitution or indemnity more
than once in respect of any one shortfall, damage,
deficiency or breach provided always that this clause
shall not prevent the Purchaser recovering damages or
obtaining reimbursement restitution or indemnity in
respect of any increased shortfall, damage, deficiency
or breach arising from the same event.
11.17 The Purchaser confirms that it does not have actual
knowledge of any circumstance or event which in the
opinion of the Purchaser gives rise at the date hereof
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to any claim against the Vendors under the Warranties
provided always that in making this statement the
Purchaser shall not be required to have carried out or
made investigations, enquiries or searches in respect
of the Business, the Assets or Employees.
11.18 The Purchaser having acknowledged that the only
Warranties to be given in respect of Clean-up and
Environmental Laws are the Environmental Warranties, no
other Warranty applies to those matters notwithstanding
that on its face and in the absence of this
Clause 11.18 it might be construed so to apply.
11.19 Notwithstanding any other provision of this agreement,
in respect of the Environmental Warranties the
limitations contained in Schedule 9 relative to the
Vendors' liability in respect of Clean-up shall apply
to the Vendors' liability in respect of breach of the
Environmental Warranties as if repeated herein mutatis
mutandis.
11.20 The rights and remedies of the Purchaser in respect of
a breach of the Warranties shall not be affected by and
in calculating the damages which may be recovered
thereunder the amount of the Consideration attributed
to each of the Assets in clause 3.3 shall be
disregarded and account shall be taken of the fact that
the purchase of the Business is on the basis that it is
a going concern.
11.21 The terms of the preceding provisions of this clause 11
shall be deemed repeated mutatis mutandis in respect of
any claim made by the Purchaser against the Vendors for
misrepresentation or negligent misstatement relative to
the Warranties (except that this clause will not apply
in the case of fraudulent misrepresentation).
12. Future activities
12.1 For the purpose of assuring to the Purchaser the
full benefit of the Business but subject to the
provisions of clause 12.2 the Vendors agree with the
Purchaser that:
12.1.1 it shall not at any time after
the date hereof disclose to any person or use
for any purpose and shall use all reasonable
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endeavors to prevent the publication or
disclosure of any confidential information
concerning the Business;
12.1.2 it shall not for a period of 2
years after the date hereof either on its own
account or through any other person directly
or indirectly solicit, interfere with or
endeavour to entice away from the Purchaser
any person who is now or has during the two
years preceding the date hereof, been a
client or customer of AETC in relation to the
Business;
12.1.3 it shall not for a period of 2
years after the date hereof without the
Purchaser's prior written consent directly or
indirectly engage in any activity which is
substantially the same as the Business or any
material part thereof as it is now carried on
in any country where AETC is or has been
engaged in any business activity provided
that nothing herein shall prevent any
subsidiary of T&N from carrying on the
business presently carried on by it other
than the Business;
12.1.4 it shall not for a period of 2
years after the date hereof either on its own
account or through any other person directly
or indirectly solicit, interfere with or
endeavour to entice away from the Purchaser
any person who is an Employee or has during
the 6 months preceding the date hereof been
an employee of AETC in relation to the
Business provided that this shall not prevent
the Vendors seeking to recruit employees by
the publication of general advertisements;
12.1.5 AETC shall and T&N shall
procure that any Subsidiary incorporating in
its name the words "AE Turbine Components"
shall with effect from the Completion Date
change their name to a name which does not
suggest a connection with the Purchaser or
trade under such name provided always that
this clause
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shall not prevent AETC, T&N or any of their
Subsidiaries using a name incorporating the
words `AE' provided that such names shall not
in addition include the words `Turbine
Components'.
12.2 The Purchaser and the Vendors agree that nothing
in Clause 12.1 shall prevent the Vendors from:
12.2.1 acquiring any company, firm or
business, part of whose business is directly
or indirectly competitive with the Business,
provided that as a result of that acquisition
the Vendors do not acquire a business that is
a material competitor of the Business;
12.2.2 soliciting or contacting any
person, firm or company who is now or has
been, during the two years preceding the
Completion Date, a client or customer of the
Vendors in relation to the Business, if such
client or customer is contacted by the
Vendors or any subsidiary of T & N for the
purpose of any business other than business
which is directly or indirectly competitive
with the Business.
12.3 The Vendors shall after the Completion Date
promptly refer to the Purchaser all enquiries relating
to the Business, including enquiries or orders for any
stocks, spares, parts, accessories and other equipment
manufactured or sold in connection with the Business,
which the Vendors may in future receive.
13. Business Records
13.1 The Purchaser shall make available to the Vendors
the books and records (or copies of relevant parts
thereof) which are delivered to the Purchaser (or as
directed by the Purchaser) under this agreement for
inspection with the right to take and retain copies by
representatives of the Vendors for any proper purpose
(including the preparation of year end accounts and tax
returns) during business hours on reasonable advance
notice being given for a period of six years from the
Completion Date (or such longer period as the same are
required to be retained under applicable law).
13.2 After the Completion Date, the Purchaser shall on
reasonable notice make available to the Vendors (or as
it may direct) the assistance of such of the Employees
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and any other employee or former employee of the
Vendors' Group then in the employment of the Purchaser
as the Vendors may reasonably require in connection
with the conduct, mediation or negotiation of matters
to avoid, or run in tandem with, proceedings by or
against third parties against or by any of the Vendors
or ESL and of which such employees have particular
knowledge by virtue of their involvement in the matter
giving rise to such proceedings or otherwise in
connection with the tax returns and month or year-end
accounting information of the Vendors' Group.
13.3 The obligation of the Purchaser to make available
to the Vendors any of its employees shall be subject to
the Vendors having agreed in terms acceptable to the
Purchaser to compensate the Purchaser in respect of the
full cost of salary and other benefits of the
Purchaser's employees involved for every half day or
substantial part thereof in so assisting.
13.4 The Vendors shall make available to the Purchaser
the books and records forming part of the Excluded
Assets (or copies of relevant parts thereof) which as
such are retained by the Vendors under this agreement
for inspection with the right to take and retain copies
by representatives of the Purchaser for any proper
purpose during business hours on reasonable advance
notice being given for a period of six years from the
Completion Date (or such longer period as the same are
required to be retained under applicable law).
14. Announcements
14.1 No announcement of any kind shall be made in
respect of the subject matter of this agreement except
as specifically agreed between the parties hereto or if
an announcement is required by the Stock Exchange, the
New York Stock Exchange, or by the securities laws of
the United States of America. Any announcement by
either party shall in any event be issued only after
prior consultation with the other.
15. Costs
15.1 All expenses incurred by or on behalf of the
parties, including all fees of agents, solicitors,
accountants and actuaries employed by either of the
parties in connection with the negotiation, preparation
and execution of this agreement shall be borne solely
by the party which incurred them.
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16. Communications
16.1 All communications between the parties with
respect to this agreement shall be in writing and
delivered by hand or sent by first-class post (in
respect of an address in the United Kingdom) or
international courier (in respect of an overseas
address) to the address of the addressee as set out in
this agreement, or to such other address as the
addressee may from time to time have notified for the
purpose of this clause, or sent by facsimile.
16.2 Communications shall be deemed to have been
received:
16.2.1 if sent by first class post: 2
business days after posting exclusive of the
day of posting;
16.2.2 if sent by international
courier: 5 business days after delivery to
the international courier excluding of the
day of such delivery;
16.2.3 if delivered by hand: on the
day of delivery;
16.2.4 if sent by facsimile: at the
time of transmission provided that the sender
obtains a transmission confirmation and
despatches a hard copy of the facsimile by
courier to the address of the recipient
within 24 hours.
16.3 In proving service:
16.3.1 by delivery by hand: it shall
be necessary only to produce a receipt for
the communication signed by or on behalf of
the addressee;
16.3.2 by post: it shall be necessary
only to prove that the communication was
contained in an envelope which was duly
addressed and posted in accordance with this
clause;
16.3.3 by fax: it shall be necessary
only to prove a transmission confirmation and
the fact that
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the subsequent hard copy was contained in an
envelope which was duly addressed and
delivered to a courier in accordance with
this clause.
17. Entire agreement and schedules
17.1 This agreement, the Schedules, the Disclosure Letter,
the documents in the Agreed Terms, and all agreements
entered, or to be entered into, pursuant to the terms
of this agreement:-
17.1.1 together constitute the entire
agreement and understanding between the
parties with respect to the subject matter of
this agreement; and
17.1.2 (in relation to each subject
matter) supersede all prior discussions,
understandings and agreements between the
parties and their agents (or any of them) and
all prior representations and expressions of
opinion by any party (or its agent) to any
other party (or its agent);
and there shall be expressly excluded (insofar as
they can be in law) the application of any implied
terms, conditions or warranties under the Sale of Goods
Act 1979 (as amended by the Sale and Supply of Goods
Act 1994) and the Supply of Goods and Services Act 1982
or otherwise.
17.2 Any remedy conferred on the Purchaser by this
agreement for breach of this Agreement shall be in
addition and without prejudice to all other rights and
remedies available to it and the exercise of or failure
to exercise or any delay in exercising any remedy shall
not constitute a waiver by the Purchaser of any of its
rights and remedies provided always that:-
17.2.1 the Purchaser warrants and
acknowledges to the Vendors that it has not
been induced to enter into this agreement by
any representation or warranty other than the
Warranties (as qualified by the Disclosure
Letter) and the Vendors' replies to the
Purchaser's pre contract enquiries about the
Properties as attached to the Disclosure
Letter;
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17.2.2 the Purchaser agrees that it
will have no remedy (whether under the
Misrepresentation Act 1967, the law of tort,
in negligence or otherwise) in respect of any
representation made to it by or on behalf of
either of the Vendors which is or may be
untrue, inaccurate or misleading and upon
which the Purchaser might have relied in
entering into this agreement except to the
extent that such misrepresentation was made
fraudulently or was contained in the
Warranties (as qualified by the Disclosure
Letter) or elsewhere in this agreement in
which case (and in the absence of fraud) the
Purchaser's sole remedy shall be for breach
of contract and subject to the limitations
set out in clauses 11.1 - 11.19 (inclusive);
17.2.3 in the absence of fraud on the
part of either of the Vendors the Purchaser
shall not in any event be entitled to rescind
this Agreement following the Completion Date.
17.3 The Vendors warrant and acknowledge to and agree
with the Purchaser in the terms of clause 17.2.1,
17.2.2 and 17.2.3 mutatis mutandis (excluding the
reference to clause 11.1 - 11.19). Each party to this
Agreement acknowledges and agrees for the purposes of
the Misrepresentation Act 1967 that the provisions of
this clause 17 and of clause 11 are fair and reasonable
in the circumstances.
17.4 All the Schedules form part of this agreement.
17.5 This agreement shall be binding upon each party's
successors and assigns.
17.6 The benefit of this agreement shall not be
assignable by any party to this agreement other than,
in the case of the Vendors, to any member of the
Vendors' Group and, in the case of the Purchaser, to
any member of the Purchaser's Group. Any party
effecting such an assignment shall notify all other
parties in writing as soon as practicable.
17.7 No variation of the provisions of this agreement
shall be effective unless effected in writing signed by
or on behalf of each of the parties hereto and in terms
which include an extension of the guarantee given by
PCC in clause 20 to the said provisions as varied.
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18. Invalidity
18.1 If any term or provision in this agreement shall
in whole or in part be held to any extent to be illegal
or unenforceable under any enactment or rule of law,
that term or provision or part shall to that extent be
deemed not to form part of this agreement and the
enforceability of the remainder of this agreement shall
not be affected.
19. Restrictive Trade Practice Act 1976
19.1 If any provision of this agreement is registerable
under the Restrictive Trade Practices Act 1976, such
provisions shall not take affect until this agreement
shall have been so registered. The Vendors shall at
the request of the Purchaser take such reasonable steps
as are necessary to enable the Purchaser to comply with
the requirements of the Office of Fair Trading to
register this agreement (if registerable) pursuant to
the Restrictive Trade Practices Act 1976.
20. PCC Guarantee
20.1 In consideration of the Vendors entering into this
agreement and at the request of the Purchaser PCC
irrevocably and unconditionally guarantees the due and
punctual payment performance and observance by the
Purchaser of its obligations commitments and
undertakings under this agreement (other than those set
out in Clause 5) and irrevocably and unconditionally
agrees with the Vendors (for themselves and as trustee
for any other relevant member of the Vendors' Group)
that if the Purchaser shall fail in any respect to
fulfil any of its said obligations commitments and
undertakings PCC shall indemnify the Vendors and any
such member of the Vendors' Group against and in
respect of such failure to the intent that the Vendors
shall be at liberty to act and PCC shall be liable in
all respects as if PCC was the party principally bound
by such obligations commitments and undertakings
notwithstanding the winding up liquidation dissolution
or any change in the status control or ownership of the
Purchaser or the rendering invalid illegal or
unenforceable of any provision of this agreement by a
change in the law occurring after Completion.
20.2 The guarantee contained in clause 20.1 is a
continuing guarantee and shall remain in force until
the expiry of seven months after all obligations of the
Purchaser
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under this agreement have been fully performed and all
sums payable by the Purchaser have been fully paid.
20.3 PCC shall have the benefit of all of the
provisions of this agreement limiting or restricting
the liability of the Purchaser and shall be entitled to
contest its liability under this guarantee on the
grounds that the Purchaser has not failed in any
respect to fulfil its obligations commitments and
undertakings under this agreement but the obligations
of PCC under this guarantee shall not be affected by
any act omission matter or thing which but for this
provision might operate to release or otherwise
exonerate PCC from its obligations or affect such
obligations including without limitation whether or not
known to PCC:-
20.3.1 any time indulgence waiver or
consent at any time given to the Purchaser or
any other person or any forbearance neglect
or delay in seeking performance of the
relevant obligations;
20.3.2 any compromise or release of
or abstention from perfecting or enforcing
any rights or remedies against the Purchaser
or any other person;
20.3.3 any legal limitation
disability incapacity or other circumstance
relating to the Purchaser or any other
person.
20.4 The guarantee contained in this clause 20 may be
enforced by the Vendors against PCC without first
having to take any proceedings against the Purchaser
provided always that the Vendors shall have taken
reasonable steps against the Purchaser falling short of
proceedings before seeking to enforce the said
guarantee other than where so to do would in the
reasonable opinion of the Vendors formed in good faith
reduce or otherwise jeopardize the likelihood of
obtaining full recovery from PCC under the said
guarantee.
21. Interim Period
21.1 With effect from the Effective Date the Vendors
and where appropriate ESL shall be treated as having
carried on the Business for the account of the
Purchaser. Accordingly during the Interim Period but
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subject to the Vendors' rights to the Excluded Assets
and obligations relative to the Excluded Liabilities
all fixed assets and stocks purchased or sold, cash
received or paid, and receivables, expenses (both
capital and revenue) accounts payable and liabilities
in each case arising or created in relation to the
Business shall be for the account of the Purchaser
(including any cash payments made to or accounts
payable arising in respect of the Permitted Head Office
Services). Without limiting the effect of the
foregoing to the extent that the aggregate cash
received by or on behalf of the Vendors and ESL in the
course of carrying on the Business during the Interim
Period disregarding any cash receipts referable to the
Excluded Assets;
21.1.1 exceeds the aggregate cash
paid by or on behalf of the Vendors and ESL
in the course of carrying on the Business
during the Interim Period disregarding any
cash payments referable to the Excluded
Liabilities a payment shall be made by the
Vendors to the Purchaser in accordance with
clause 21.8 equal to such excess; or
21.1.2 falls short of the aggregate
cash paid by or on behalf of the Vendors and
ESL in the course of carrying on the Business
during the Interim Period disregarding any
cash payments referable to the Excluded
Liabilities a payment shall be made by the
Purchaser to the Vendors in accordance with
clause 21.8 equal to such shortfall.
21.2 No later than 15 September 1996 the Purchaser will
submit to the Vendors a statement (the "Cash
Statement") showing on a cash book basis cash receipts
and cash payments made to or by the Vendors or ESL in
the course of carrying on the Business during the
Interim Period such statement to show which of the cash
receipts relate to the Excluded Assets and which do not
and which of the cash payments relate to the Excluded
Liabilities and which do not.
21.3 To the extent that VAT Outputs (as defined in
clause 21.4) exceed VAT Inputs (as similarly defined)
during the Interim Period a payment shall be made by
the Purchaser to the Vendors in accordance with
clause 21.8 equal to such excess but to the extent that
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VAT Outputs (as defined in clause 21.4) fall short of
VAT Inputs (as similarly defined) during the Interim
Period a payment shall be made by the Vendors to the
Purchaser in accordance with clause 21.8 equal to such
shortfall.
21.4 No later than 15 September 1996 the Purchaser
shall prepare and submit to the Vendors for review a
statement (the "VAT Statement") showing the amount of
Output Tax (as defined in Value Added Tax Act 1994
Section 24 (2)) on supplies made by the Vendors and
acquisitions of goods from the Vendors in the course of
the Business during the Interim Period (the "VAT
Outputs") and the amount of Input Tax (as defined in
Value Added Tax Act 1994 Section 24 (1)) on supplies
made to the Vendors and acquisitions and importations
of goods made by the Vendors in the course of the
Business during the Interim Period (the "VAT Inputs").
21.5 If the Vendors do not agree either the Cash
Statement or the VAT Statement and any disagreement has
not been resolved within 30 days of their receipt of
such statement either party may refer the matter or
matters in relation to which there is a disagreement to
the Independent Accounting Firm (as defined in
clause 4.2) which firm shall be instructed to determine
such matter or matters as soon as practicable and which
firm shall act and whose fees shall be borne as if
clause 4.2 were here repeated mutatis mutandis.
21.6 For the purposes of clause 21.5 and its references
to the Independent Accounting Firm clause 4.3 shall
apply mutatis mutandis.
21.7 If at any time after delivery of either the Cash
Statement or the VAT Statement in accordance with
clauses 21.2 and 21.4 respectively it is agreed by the
Vendors and the Purchaser that the amount owing by one
to the other in connection with that statement exceeds
a particular sum but the amount of such excess is not
agreed a payment on account shall be payable by one to
the other equal to the aggregate of such sum and that
portion of the excess as can be agreed.
21.8 Any sum shown by either the Cash Statement or the
VAT Statement to be owing by one party to the other and
any sum the subject of clause 21.7 shall be paid within
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five days after agreement or determination as the case
may be and shall carry interest accruing at the rate of
1% per annum above the base lending rate for the time
being of National Westminster Bank plc from and
including the Effective Date to the earlier of but
excluding the due date for payment and the date of
payment. Any sum remaining unpaid as at the due date
for payment shall thereafter carry interest accruing at
the rate of 3% per annum above the base lending rate
for the time being of National Westminster Bank plc
from and including the due date for payment to but
excluding the date of actual payment (whether before or
after any judgement).
21.9 In order to facilitate the Vendors' review of each
of the Cash Statement and the VAT Statement the
Purchaser will provide to the Vendors:-
21.9.1 full access to those working
papers of the Purchaser and of any accountant
or adviser engaged by it; and
21.9.2 reasonable access during
normal working hours on prior notice having
been given to any employee of the Purchaser
or PCC who has been engaged in the
preparation of the Cash Statement or the VAT
Statement of whom the Vendors wish to raise
queries
in each case relative to the preparation of the Cash
Statement or the VAT Statement.
21.10 Any cash payment made or received
by the Vendors or ESL in foreign currency during
the Interim Period relative to a non-cash asset or
liability appearing in the Final Balance Sheet
shall be for the purposes of the preparation of
the Cash Statement converted into pounds sterling
at the rate prescribed in paragraph 4.1 of
Schedule 8. Otherwise cash payments made or
received by the Vendors or ESL in foreign currency
during the Interim Period shall be for the
purposes of the preparation of the Cash Statement
converted into pounds sterling at the rate
actually used by the Vendors or ESL when effecting
that conversion.
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22. Conduct of Matters The Subject of Indemnification
22.1 For the purposes of this clause 22 the party
providing any indemnity under the terms of this
agreement shall be referred to as the "Indemnifying
Party" and the party benefiting from that indemnity
shall be referred to as the "Indemnified Party".
22.2 If either the Indemnified Party or the
Indemnifying Party becomes aware of any claim or action
of a third party in respect of which either may have
recourse against the other under this agreement (a
"Third Party Claim") it shall as soon as reasonably
practicable inform the other in writing and in
reasonable detail of that third party claim.
22.3 The Indemnified Party shall take or shall procure
that the relevant member of its Group shall take such
action as the Indemnifying Party may reasonably require
in relation to that Third Party Claim including doing
or omitting to do all such things as would or might in
similar circumstances in accordance with the normal
practice of the business affected by the subject matter
of that Third Party Claim have been done by the
Indemnifying Party but not so that the Indemnified
Party shall be required to do or omit from doing any
act or to procure that the relevant member of its Group
does or omits from doing any act where such act or
omission would on a balance of probabilities damage any
trading relationship or goodwill of the business
concerned to a disproportionate extent having regard to
the magnitude of that Third Party Claim.
22.4 The Indemnifying Party shall keep the Indemnified
Party fully indemnified in respect of any action
including doing or omitting to do anything required by
the Indemnifying Party pursuant to clause 22.3.
22.5 The Indemnified Party will keep the Indemnifying
Party informed as to the action being taken in
connection with any Third Party Claim.
22.6 If the Indemnified Party or any member of its
Group is or becomes entitled to recover from some
person any monies loss or damage in relation to the
matter giving rise to a Third Party Claim whether or
not the Indemnified Party has already been indemnified
in relation to that claim by the Indemnifying Party the
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Indemnified Party shall use or procure that any
relevant member of its Group shall use all its
reasonable endeavors to enforce such right of recovery
including doing or omitting to do all such things as
would or might in similar circumstances in accordance
with the normal practice of the business affected by
that Third Party Claim have been done by or on behalf
of the Indemnifying Party but not so that the
Indemnified Party shall (other than in the case of
action involving insurers) be required to do or omit
from doing any act or to procure that the relevant
member of its Group does or omits from doing any act
where such act or omission would on a balance of
probabilities damage any trading relationship or
goodwill of the business concerned to a
disproportionate extent having regard to the magnitude
of the Third Party Claim.
22.7 Neither the Indemnified Party nor any member of
its Group shall settle or discharge any Third Party
Claim without the prior written consent of the
Indemnifying Party unless settlement or discharge of
that Third Party Claim is necessary on the balance of
probabilities to avoid damage to any trading
relationship or goodwill of the business concerned to a
disproportionate extent having regard to the magnitude
of the Third Party Claim.
22.8 In the event that recovery is made by the
Indemnified Party or a member of its Group in relation
to a matter giving rise to a claim for which the
Indemnified Party or a member of its Group has already
been indemnified by the Indemnifying Party the
Indemnified Party shall procure payment to the
Indemnifying Party of an amount equal to the lesser of:-
22.8.1 the amount recovered referable
to the Third Party Claim after deduction of
all reasonable expenses of recovery (to the
extent not recovered from the Third Party and
for which recovery has not yet been made from
the Indemnifying Party under this clause 22);
and
22.8.2 the amount paid by the
Indemnifying Party in or towards discharge or
settlement of that Third Party Claim
within two working days of the Indemnified Party
effecting such recovery and in the event of such
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payment not being made the amount in question will bear
interest at the rate of 3% per annum above the base
lending rate of National Westminster Bank plc from time
to time from and including the due date of payment to
but excluding the date of payment in full (whether
before or after any judgement).
22.9 Any sum paid by the Vendors in order to indemnify
the Purchaser under the terms of this agreement shall
serve to reduce the cash element of the Consideration
and shall in particular serve to reduce that part of
the cash element of the Consideration allocated under
clause 3.3 to the Asset to which the subject matter of
the indemnity most closely relates.
23. Taking of Stocks and ROT Stock
23.1 The Vendors and the Purchaser agree and
acknowledge that for the purposes of enabling
preparation of the Effective Date Balance Sheet a
physical taking of the stock-in-trade of the Business
shall be carried out on the Stocktake Date and shall be
used in conjunction with the records of the Business
evidencing movements in the Business' stock-in-trade
since the Effective Date to compute as nearly as
possible the value of the Business' stock-in-trade at
the Effective Date.
23.2 The Purchaser undertakes to the Vendors that:-
23.2.1 until the Stocktake Date it
will deal with the Stocks and ROT Stock in
the ordinary course of business and will
maintain records of such dealings consistent
with the habitual practice of the Vendors
relative to stocks of the Business prior to
Completion;
23.2.2 it will provide the Vendors
with at least three clear days prior notice
in writing of the time at which taking of
Stock and ROT Stock will commence on the
Stocktake Date; and
23.2.3 it will allow the Vendors
their employees, agents, representatives and
accountants
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unrestricted access to each of the Properties
for the purposes of participating in the
taking of Stocks and ROT Stock on the
Stocktake Date.
24. Warranties of Purchaser
24.1 The Purchaser is a company duly organised and validly
existing under the laws of the United Kingdom.
24.2 The Purchaser is entitled to and has the full
corporate power and legal authority to enter into this
agreement and carry out its terms, has taken all
corporate action necessary to authorise the execution,
delivery and performance of this agreement and has
obtained all third party consents that are required by
legislation currently in force.
24.3 Except as expressly contemplated by this agreement
neither the execution and delivery of this agreement by
the Purchaser or any document entered into by the
Purchaser in accordance with it, nor the consummation
of the transactions contemplated by this agreement
will:-
24.3.1 violate or conflict with any
provision of the Purchaser's memorandum or
articles of association or other equivalent
documents comprising its constitution;
24.3.2 violate any legislation
currently in force, judgement, order,
injunction, decree, rule or regulation
applicable to the Purchaser;
24.3.3 either alone or with the
giving of notice or the passage of time or
both conflict with, constitute grounds for
termination or acceleration of, result in the
breach of the terms, conditions or provisions
of or constitute a default under any
agreement, instrument, licence or permit to
which the Purchaser is a party.
25. Warranties of PCC
25.1 PCC is a company duly organised and validly
existing under the laws of the State of Oregon, United
States of America.
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25.2 PCC is entitled to and has the full corporate
power and legal authority to enter into this agreement
and carry out its terms, has taken all corporate action
necessary to authorise the execution, delivery and
performance of this agreement and has obtained all
third party consents that are required by legislation
currently in force.
25.3 Except as expressly contemplated by this agreement
neither the execution and delivery of this agreement by
PCC or any document entered into by PCC in accordance
with it, nor the consummation of the transactions
contemplated by this agreement will:-
25.3.1 violate or conflict with any
provision of PCC's memorandum or articles of
association or other equivalent documents
comprising its constitution;
25.3.2 violate any legislation
currently in force, judgement, order,
injunction, decree, rule or regulation
applicable to PCC;
25.3.3 either alone or with the
giving of notice or the passage of time or
both conflict with constitute grounds for
termination or acceleration of, result in the
breach of the terms, conditions or provisions
of or constitute a default under any
agreement, instrument, licence or permit to
which PCC is a party.
26. Proper Law and Jurisdiction
26.1 The construction, validity and performance of this
agreement shall be governed by the laws of England and
the parties hereto submit to the exclusive jurisdiction
of the courts of England and Wales with the exception
that in respect of clauses 20 and 25 the Vendors do not
so submit.
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AS WITNESS whereof this agreement has been signed by parties the
day and year first before written.
Signed by /s/ D.J. LUDLOW
a duly authorised attorney ______________________________
T&N PLC D.J. Ludlow
Signed by /s/ D.J. LUDLOW
a duly authorised attorney ______________________________
AE TURBINE COMPONENTS LIMITED D.J. Ludlow
Signed by /s/ D.J. LUDLOW
a duly authorised attorney ______________________________
T&N EXPORT SERVICES LIMITED D.J. Ludlow
Signed by /s/ PETER G. WAITE
for and on behalf of ______________________________
PRECISION CASTPARTS CORP. Peter G. Waite
Signed by /s/ PETER G. WAITE
for and on behalf of ______________________________
AETC LIMITED Peter G. Waite
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