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Exhibit 2.2
AMENDMENT NO. 1 TO AND ASSIGNMENT OF ASSETS PURCHASE AGREEMENT
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AMENDMENT NO. 1 TO ASSETS PURCHASE AGREEMENT (the "AMENDMENT"),
dated as of May 27, 1999, by and among BICC CABLES CORPORATION, a company
incorporated in Delaware, the United States, whose principal place of business
is at Xxx Xxxxxxxxx Xxxxxx, Xxxx Xxxxx, XX; PYROTENAX USA INC. (together with
BICC Cables Corporation, the "US VENDOR"), a company incorporated in Delaware,
the United States; BICC CABLES CANADA INC. (the "CANADIAN VENDOR"), a company
incorporated under the federal laws of Canada, whose principal place of business
is at 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxx, Xxxxxxx X0X 155; BICC PLC
(the "VENDORS' GUARANTOR"), a company incorporated in England and Wales, whose
registered office is at Xxxxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxx X0X 0XX; GK
TECHNOLOGIES, INCORPORATED (the "US PURCHASER"), a company incorporated in New
Jersey, the United States, whose principal place of business is at 0 Xxxxxxxxx
Xxxxx, Xxxxxxxx Xxxxxxx, XX 00000; GK TECHNOLOGIES, INCORPORATED (the "CANADIAN
PURCHASER" and together with the US Purchaser, the "PURCHASER"), a company
incorporated in New Jersey, the United States, whose principal place of business
is at 0 Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, XX 00000; GENERAL CABLE CORPORATION
(the "PURCHASERS' GUARANTOR"), a company incorporated in Delaware, the United
States whose principal place of business is at 0 Xxxxxxxxx Xxxxx, Xxxxxxxx
Xxxxxxx, XX 00000; BICC GENERAL PYROTENAX CABLES LTD. ("PYROTENAX ASSIGNEE"), a
company incorporated in Ontario, Canada; BICC GENERAL CABLE (USA) LLC ("US
ASSIGNEE"), a limited liability company organized under the laws of the state of
Delaware, the United States; and BICC GENERAL CABLE COMPANY ("CANADIAN
ASSIGNEE"), an unlimited liability company incorporated in Nova Scotia, Canada.
W I T N E S E T H:
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WHEREAS, the US Vendor, the Canadian Vendor, the Vendors'
Guarantor, the US Purchaser, the Canadian Purchaser and the Purchasers'
Guarantor are parties to an Assets Sale and Purchase Agreement, dated as of
April 6, 1999 (the "ASSET PURCHASE AGREEMENT");
WHEREAS, the parties to the Asset Purchase Agreement desire to
consent to make certain amendments to the Asset Purchase Agreement, as set forth
below and to set forth other agreements among the parties;
WHEREAS, the US Purchaser and Canadian Purchaser desire to assign
all of their rights and delegate all of their obligations arising under the
Asset Purchase Agreement to the US Assignee, the Canadian Assignee and the
Pyrotenax Assignee; and
WHEREAS, the US Vendor, Canadian Vendor and Vendor's Guarantor
desire to consent to such assignment and delegation.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
A G R E E M E N T:
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I. DEFINED TERMS. Except as otherwise expressly provided herein,
capitalized terms used herein that are defined in the Asset Purchase Agreement,
as amended hereby, shall have the same meaning as specified in the Asset
Purchase Agreement, as so amended.
II. AMENDMENTS: the Asset Purchase Agreement is hereby amended as
set forth below.
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(a) A new Section 3.4 is added to the Asset
Purchase Agreement to read in its entirety as follows:
"3.4 ADJUSTMENT WITH RESPECT TO JACKSON, TENNESSEE PROPERTY.
Notwithstanding anything to the contrary contained herein and in
connection with the assignment at Closing to the US Purchaser of that
certain lease dated May 1, 1991 (the "Lease") between the US Vendor and
The Industrial Development Board of the City of Xxxxxxx, a Tennessee
public non-profit Corporation, at the Closing the Purchase Price shall
be reduced by $9 million, the amount of the aggregate Liability to be
assumed by the US Purchaser with respect to the Lease. The adjustment
set forth in this Section shall take effect as an adjustment to the
Purchase Price. No adjustment to the Purchase Price shall be made in
accordance with the provisions of Section 9 of the Agreement for the
Liability for which the Purchase Price is adjusted pursuant to this
Section."
(b) Section 6.4.2 of Schedule 8 shall be deleted in
its entirety and replaced with the following:
"Without limiting Section 6.4.1, Vendors shall
also be responsible for one-half of the special award
payments payable pursuant to the special performance
letters dated August 20, 1998, and August 24, 1998, (as in
effect immediately prior to the Closing Date) concerning
Xxxxxxx Xxxxx, Xxxxxx XxXxxx, Xxxxxxx Xxxx, Xxxxx Xxxxxxx,
Xxxxxx Xxxxxxxx (collectively, the "SPECIAL PERFORMANCE
LETTERS"). The US Purchaser shall be responsible for the
other half of the special award payments pursuant to the
Special Performance Letters."
(c) A new Section 17.5.7 is added as follows:
"17.5.7. The parties have agreed that without
prejudice to the rights conferred on the US
Purchaser under and notwithstanding Section
17.5.3 the US Purchaser shall be entitled to
use and have the right to sublicense to any
wholly owned subsidiary of the Purchaser's
Guarantor (but only for so long as such remain
a wholly owned subsidiary of the Purchaser's
Guarantor) the name "BICC General Brand Xxx
Cables "as the name of any corporate entity,
partnership or other vehicle which, in all
cases, is solely involved in the manufacture,
sale or distribution of Specialty Cables in the
United States of America, Canada or Mexico."
(d) A new section 17.8 is added as follows:
"17.8 RECORDS RETENTION AND ACCESS
17.8.1 (a) The Purchaser shall keep and preserve in an
organized and retrievable manner all books, records and other
information in any form including paper, electronically stored data,
magnetic media, film and microfilm included in the Acquired Assets
(the "PURCHASER BOOKS AND RECORDS") for three (3) years from the
Closing Date or longer if the statute of limitations for income tax
purposes has not expired for any income or franchise tax return for
any taxable period prior to or including the Closing Date. The
Purchaser shall neither dispose of nor destroy such Books and Records
at any time without first offering to turn over possession thereof to
the US Vendor and the Canadian Vendor by written notice to each at
least fifteen (15) days prior to the proposed date of such
disposition.
(b) Each of the US Vendor and the Canadian Vendor shall
keep and preserve in an organized and retrievable manner all books,
records and other information in any form including paper,
electronically stored data, magnetic media, film and microfilm
included in the Excluded Assets (the "VENDOR BOOKS AND
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RECORDS") for three (3) years from the Closing Date or longer if the
statute of limitations for income tax purposes has not expired for
any income or franchise tax return for any taxable period prior to or
including the Closing Date. Neither the US Vendor nor the Canadian
Vendor shall dispose of or destroy such Books and Records at any time
without first offering to turn over possession thereof to the
Purchaser by written notice to the US Purchaser at least fifteen (15)
days prior to the proposed date of such disposition.
17.8.2 (a) Purchaser shall allow the Canadian Vendor and
the US Vendor, their representatives, attorneys and accountants, at
the respective Vendors' expense, access to the employees of the
Purchaser and to the Purchaser Books and Records upon reasonable
request and during normal business hours for the purpose of
interviewing, examining and copying to the extent reasonably
necessary or advisable in connection with any litigation or
proceeding, the preparation of any required tax returns or in
connection with any tax procedure, any obligation or duty hereunder,
compliance with any legal duty or obligation, or otherwise.
(b) Each of the US Vendor and the Canadian Vendor shall
allow the Purchaser, its representatives, attorneys and accountants,
at the Purchaser's expense, access to the employees of the Vendors to
the Vendor Books and Records upon reasonable request and during
normal business hours for the purpose of interviewing, examining and
copying to the extent reasonably necessary or advisable in connection
with any litigation or proceeding, the preparation of any required
tax returns or in connection with any tax procedure, any obligation
or duty hereunder, compliance with any legal duty, or obligation or
otherwise.
17.8.3 (a) The Purchaser shall allow Internal Revenue
Service or Revenue Canada examining agents or state or provincial
income or franchise or sales tax examining agents, if accompanied by
the Canadian or US Vendor's tax representatives, accountants or
attorneys, access to the Purchaser Books and Records during normal
business hours for the purpose of conducting an income or franchise
tax audit of the Operations for any tax period prior to or including
the Closing Date; which access shall be limited in scope to the
Purchaser Books and Records which are relevant to the subject matter
of the audit.
(b) Each of the US Vendor and the Canadian Vendor shall
allow Internal Revenue Service or Revenue Canada examining agents or
state or provincial income or franchise or sales tax examining
agents, if accompanied by the Purchaser's tax representatives,
accountants or attorneys, access to the Vendor Books and Records
during normal business hours for the purpose of conducting an income
or franchise tax audit of the Operations."
(c) Section 19.5.2 of the Asset Purchase Agreement is
deleted in its entirety and replaced with the following:
"19.5.2 This Agreement is personal to the parties to it.
Accordingly, except as otherwise set forth in Section 19.5.1 no party
may, without the prior written consent of the Purchasers and the
Vendors' Guarantor, assign either this agreement or any of its
rights, interests or obligations under this Agreement; provided,
however, (i) the US Purchaser and the Purchasers' Guarantor may
assign all of their rights and interest hereunder relating to the US
Business and delegate all of their obligations hereunder relating to
the US Business to any person to whom the US Purchaser sells a
substantial part of the assets of the US Business or to any person
that is the successor to all or substantially all of the US Business;
(ii) the Canadian Purchaser and the Purchasers' Guarantor may assign
all of their rights and interests hereunder relating to the Canadian
Business and delegate all of their obligations hereunder relating to
the Canadian Business to any person to whom the Canadian Purchaser
sells a substantial part of the assets of the Canadian Business or to
any person that is the successor to all or substantially all of the
Canadian Business; and (iii) and the Vendors and the Vendors'
Guarantor may assign all of their rights and delegate all of their
obligations hereunder to any person to whom the Vendors or the
Vendors' Guarantor sell a substantial part of their respective
assets. This Agreement shall bind, benefit, and be enforceable by and
against each party hereto and its successors and permitted assigns."
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(d) Schedule 1 of the Asset Purchase Agreement is amended
to reflect that the Jackson, TN site is a Leased Property and not a
Vendor Owned Real Property.
(e) Schedule 10, Part I, Transfer Taxes is deleted in its
entirety and replaced with Exhibit B hereto.
(f) Schedule 15 of the Asset Purchase Agreement is deleted
in its entirety and replaced with Exhibit A hereto.
III. ADDITIONAL AGREEMENTS REGARDING EMPLOYMENT MATTERS. In addition
to the foregoing amendments to the Asset Purchase Agreement, the parties agree
as follows:
(a) SECTION 401(K) PLAN. US Vendor and US Purchaser agree
that notwithstanding the provisions of Section 1.1.1 of Schedule 12
of the Asset Purchase Agreement, the assets and liabilities of the
BICC Cables Corporation 401(k) Savings Plan (the "PLAN") attributable
to the accrued benefits of those employees of the US Vendor who
remain employed at the corporate headquarters of the US Vendor
post-Closing shall not be transferred to another plan maintained by
the US Vendor or one of its affiliates, but instead shall be included
in the Plan as assumed by US Purchaser at Closing. The parties
further agree that the participation in the Plan by those employees
who remain employed at the corporate headquarters of the US Vendor
post-Closing shall be frozen, and that amendments to the Plan
necessary to implement the foregoing shall be adopted prior to
Closing, and that all loans outstanding to such employees shall be
repaid prior to Closing.
(b) SEVERANCE PLAN. Notwithstanding the provisions of
Section 1.2 of the Asset Purchase Agreement, US Purchaser hereby
agrees to pay severance benefits (including Salary as defined under,
and all Benefits specified in Attachment A to, the BICC Cables
Corporation Severance Plan) for the period specified in, and in
accordance with the terms of the BICC Cables Corporation Severance
Plan, as in effect on the date of the Asset Purchase Agreement (April
6, 1999), to all Continuing Employees whose employment with the US
Purchaser is terminated within 90 days after the Closing Date, as if
the employee were terminated from BICC. Such payments shall be in
lieu of any other severance benefits to which the individual might be
entitled under the General Cable Severance Plan. US Vendor shall
reimburse US Purchaser each month, within 5 business days of receipt
of an invoice for such month after the last day of such month, for an
amount equal to the sum of (i) one-half of the difference between (A)
the actual monthly salary continuation payment, if any, made during
such month by US Purchaser to any Continuing Employee whose
employment was terminated within 90 days after the Closing Date; and
(B) the monthly salary continuation payment to which such Continuing
Employees would otherwise be entitled under the General Cable
Severance Plan in the absence of this paragraph (b) and (ii) one-half
of the employer matching contribution made by General Cable to the
Section 401(k) Plan with respect to any salary deferrals made during
such month by any Continuing Employees whose employment was
terminated within 90 days after the Closing Date, provided that the
total amount payable by US Vendor pursuant to this paragraph (b)
shall not exceed $275,000.
(c) Cooperative Efforts. US Purchaser has agreed that upon
the Closing Date it will cause all of the employees of the US Vendor
(other than those employees with employment contracts who are not
listed in the Employment Letter as continuing employees) to become
Continuing Employees of US Purchaser. The parties recognize, however,
that for purposes of effecting a smooth transition of the sale of US
Vendor's operations each side may wish to draw on the expertise of
employees of the other. To this end, the parties agree that, for 60
days from the Closing without charge, US Vendor shall be permitted
reasonable access to the employees of US Purchaser after Closing for
purposes of obtaining such information as necessary to implement the
wind-up of US Vendor's operations in the United States and US
Purchaser shall be permitted reasonable access to the remaining
employees of US Vendor after Closing for purposes of assisting in the
integration of the business. Any services provided to US Vendor by an
employee of US Purchaser pursuant to this Section III shall be
performed in his capacity as an employee of US Purchaser, under the
exclusive direction and control of US Purchaser, and he shall in no
event on account of such
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services become an employee of US Vendor or entitled to any benefit
plans maintained by US Vendor, and any services provided to US
Purchaser by an employee of US Vendor shall be performed in his
capacity as an employee of US Vendor, under the exclusive direction
and control of US Vendor, and he shall in no event become an employee
of US Purchaser on account of such services or entitled to any
benefit plans maintained by US Purchaser. After 60 days from the
Closing US Purchaser and US Vendor shall review these arrangements to
determine whether it is appropriate for such access to be on a cost
reimbursable basis going forward or otherwise.
(d) LEASEBACK. US Vendor hereby reserves the right to
require that up to four individuals, to be named by US Vendor, who
become Continuing Employees of US Purchaser, be leased back to US
Vendor, for such period as required by US Vendor, on a full time
basis. US Purchaser shall continue to employ such individuals for the
period that they are leased back to US Vendor and shall provide them
with salary and benefits commensurate with that provided to other
Continuing Employees who perform services for US Purchaser similar to
those provided by the leased individuals to the US Vendor. US Vendor
shall reimburse US Purchaser for 100% of the cost of the salary and
other benefits (other than severance benefits) actually provided by
the US Purchaser to such individuals during the time that they are
leased to US Vendor. With respect to severance benefits, upon the
termination of employment with US Purchaser of any individual subject
to this paragraph (d), US Purchaser shall pay severance benefits to
such individuals, in accordance with the provisions of the General
Cables Severance Plan subject to the requirements of subsection
III(b) above. Notwithstanding any other severance obligation, the US
Vendor shall reimburse US Purchaser for any additional severance
benefits earned by the individual under such plan on account of his
employment with the US Purchaser, from the date as of which his
employment would have been terminated by the US Purchaser in the
absence of this paragraph (d) until the date of his actual
termination of employment by the US Purchaser
(e) LEASEBACK. US Purchaser hereby reserves the right to
require that up to four individuals, to be named by US Purchaser, who
are employees of US Vendor after the Closing Date, be leased back to
US Purchaser, for such period as required by US Purchaser, on a full
time basis. US Vendor shall continue to employ such individuals for
the period that they are leased back to US Purchaser and shall
provide them with their existing salary and benefits. US Purchaser
shall reimburse US Vendor for 100% of the cost of the salary and
other benefits (other than severance benefits) actually provided by
the US Vendor to such individuals during the time that they are
leased to US Purchaser. With respect to severance benefits, upon the
termination of employment with US Vendor of any individual subject to
this paragraph (e), US Vendor shall pay severance benefits to such
individuals, in accordance with the employee contracts, if any, into
which they have entered with US Vendor.
IV. ASSIGNMENT.
(a) Pursuant to Section 19.5 of Asset Purchase
Agreement:
(i) Except with respect to the assets as to which the
assignment set forth in Section (iii) below relates, the
US Purchaser hereby assigns to BICC General Cable (USA),
LLC, a Delaware limited liability company, all of its
rights and delegates all of its obligations arising under
the Asset Purchase Agreement, as amended by this
Amendment, relating to the US Assets, and BICC General
Cable (USA), LLC hereby accepts such assignment and shall
assume and perform such obligations.
(ii) Except with respect to the assets as to which the
assignment forth in Section (iii) below relates, the
Canadian Purchaser hereby assigns to BICC General Cable
Company, a Nova Scotia unlimited liability company, all of
its rights, and delegates all of its obligations arising
under the Asset Purchase Agreement, as amended by this
Amendment, relating to the Canadian Assets, and BICC
General Cable Company hereby accepts such assignment and
shall assume and perform such obligations.
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(iii) GK Technologies, Incorporated, as US Purchaser and
Canadian Purchaser, hereby assigns to BICC General
Pyrotenax Cables Ltd., an Ontario Corporation, all of its
rights and delegates all of its obligations under the
Asset Purchase Agreement, as amended by this Amendment,
relating to the US Assets and Canadian Assets that are
assets used in the Pyrotenax business conducted by the
Vendors (the "Pyrotenax Assets"), and BICC General
Pyrotenax Cables Ltd. hereby accepts such assignment and
shall assume and perform such obligations.
(b) Each of Vendors' Guarantor, US Vendor and Canadian
Vendor hereby consent to the assignment set forth in this Section.
(c) From and after the date hereof, BICC General Cable
(USA), LLC and BICC General Pyrotenax Cables Ltd. as assignee with
respect to that portion of the Pyrotenax Assets that are US Assets
shall be collectively the "US Purchaser" under the Asset Purchase
Agreement and BICC General Cable Company and BICC General Pyrotenax
Cables Ltd. as assignee with respect to that portion of the Pyrotenax
Assets that are Canadian Assets shall collectively be the "Canadian
Purchaser" under the Asset Purchase Agreement.
V. INDEMNITY PAYMENT.
(a) Pursuant to Section 7.3.1(ii) of the Asset Purchase
Agreement, the US Vendor hereby gives notice that, at Closing, a
breach of the Warranty set forth in Section 3.4.2 of Schedule 8 of
the Asset Purchase Agreement has occurred (such Warranty being the
"SECTION 3.4.2 WARRANTY"; the Section 3.4.2 Warranty, together with
any other representation or warranty contained in the Asset Purchase
Agreement or the Non-North American Sale and Purchase Agreement
(together with the Asset Purchase Agreement the "PURCHASE
AGREEMENTS") or any Schedule to either Purchase Agreement which
relates to material adverse changes in all or any portion of the
Global Operations or the financial condition or results of operation
thereof, being herein collectively referred to as "MAC WARRANTIES").
(b) In acknowledgment of the breach of the Section 3.4.2
Warranty and the desire of the parties to consummate the transactions
contemplated by the Purchase Agreements, the parties hereto
acknowledge and agree as follows:
(i) At the Closing, US Purchaser shall be deemed to have
made, and US Vendor shall be deemed to have accepted,
without dispute, a claim for indemnification, pursuant to
Section 2.3 of the Asset Purchase Agreement, in the amount
of (pound) 13.6 million for Losses resulting from the
breach of the Section 3.4.2 Warranty (the "SECTION 3.4.2
INDEMNITY CLAIM").
(ii) Upon receipt by the US Purchaser of a payment in
respect of the Section 3.4.2 Indemnity Claim in the amount
of (pound) 13.6 million (the "MAC INDEMNITY PAYMENT"), the
Purchaser and the Purchaser's Guarantor, together with the
Purchaser and each Relevant Purchaser (each as defined in
the Non-North American Sale Purchase Agreement), shall
have waived (i) all further claims any of them may have
pursuant to either Purchase Agreement in respect of any
Losses resulting from any breach of any MAC Warranty and
(ii) any right any of them may have to terminate the
Non-North American Sale and Purchase Agreement pursuant to
Section 4.5 thereof as a result of any breach of any MAC
Warranty.
(iii) Any term or provision hereof to the contrary
notwithstanding, (i) for purposes of Section 2.3.5(b) of
the Asset Purchase Agreement, the Section 3.4.2 Indemnity
Claim shall be deemed never to have been made, and (ii)
for purposes of Section 2.3.5(c) of the Asset Purchase
Agreement, such Section 3.4.2 Indemnity Claim shall be
deemed to have been made and, upon receipt of the MAC
Indemnity Payment, satisfied in full.
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(iv) The MAC Indemnity Payment will be made through
offset against the Purchase Price payable at Closing
pursuant to Section 3.1(a) of the Asset Purchase
Agreement.
VI. INDUSTRIAL REVENUE BOND.
(a) JACKSON, TENNESSEE FACILITY. US Vendor entered into a
certain lease dated as of May 1, 1991 (the "Lease"), with The
Industrial Development Board of the City of Xxxxxxx, a Tennessee
public nonprofit corporation (the "IDB") to finance the construction
of, inter alia, a certain manufacturing facility and all
improvements thereon and property therein, having an address of 00
Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx (the "Property"). Vendors'
Guarantor guaranteed the obligations of US Vendor under the Lease
pursuant to the terms of that certain Guaranty Agreement dated as of
May 1, 1991, from Vendors' Guarantor to First American National
Bank, Nashville, Tennessee, a national banking association, as
trustee (the "Guaranty"). It is anticipated that as of the Closing
Date, all or any consents necessary to release US Vendor and the
Vendors' Guarantor from their respective obligations under the
Guaranty will not have been obtained. As a result, the parties
hereto have agreed as follows: (a) at Closing, US Vendor and US
Purchaser will enter into a certain assignment and assumption of
lease in the form attached hereto as Exhibit C pursuant to which,
among other things, US Vendor will assign the Lease to US Purchaser
who will perform the obligations of the tenant thereunder from and
after the Closing Date, (b) at Closing, Purchaser's Guarantor will
execute a certain guaranty indemnity agreement in the form attached
hereto as Exhibit D pursuant to which Purchaser's Guarantor shall
agree to indemnify the Vendors' Guarantor from any liability arising
from performance by Vendor's Guarantor under the Guaranty as a
result of acts occurring after Closing, (c) US Vendor will execute
that certain certificate attached hereto as Exhibit E and (d) on or
before May 31, 2000, US Purchaser shall, at its sole cost and
expense, cause US Vendor and the Vendors' Guarantor and their
affiliates to be released in full from their respective obligations
under the Lease and the Guaranty by either: (i) obtaining the
consent of the bondholders to release the US Vendor, the Vendors'
Guarantor and their affiliates, if any, from their obligations under
the Guaranty or (ii) defeasing the bonds. In the event that the US
Vendor and the Vendors' Guarantor are not released from all
obligations and Liability under the Lease and the Guaranty on or
before May 31, 2000 the US Purchaser will pay to the US Vendor, or
its assignee, an amount equal to all Liability then due under the
Lease and the US Vendor will defease the bonds.
VII. Section 1.1.6 of Schedule 12 of the Asset Purchase Agreement
is hereby deleted in its entirety and replaced with the following:
(a) On the Closing Balance Sheet US Vendor shall
(i) establish a reserve for the total bonuses payable under the
BICC Cables Corporation Management Incentive Plan and the BICC
Cables Corporation Discretionary Bonus Plan to Continuing
Employees ("total bonus accrual"); and (ii) supply US Purchaser
with a schedule of individuals who are Continuing Employees and
for whom bonuses have been accrued under the Management Incentive
Plan and Discretionary Bonus Plan for the period January 1, 1999
through the Closing Date ("pre-closing period"), which schedule
shall specify the name of each individual and the specific dollar
amount of the total bonus accrual assigned to that individual
("individual's pre-closing accrued bonus"). (Individuals
described in this paragraph (a) are referred to as "scheduled
individuals").
Thereafter, at such time as US Purchaser pays
bonuses to its employees for 1999 under its bonus and/or
incentive programs, US Purchaser will supply US Vendor with a
report that indicates (i) the portion of each scheduled
individual's 1999 bonus and incentive payments from US Purchaser
that are attributable to the pre-closing period (actual
pre-closing bonus) and (ii) the portion attributable to the
period from May 29, 1999 until December 31, 1999 (post-closing
bonus). With respect to the pre-closing period, US Purchaser
shall have the discretion to determine whether a scheduled
individual's actual pre-closing bonus shall be less than or equal
to the individual's pre-closing accrued bonus. In no event may
the amount designated by the US Purchaser as the scheduled
individual's actual pre-closing bonus exceed the individual's
pre-closing accrued bonus. In the event that the actual
pre-closing bonus of a scheduled individual (including a
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scheduled individual who receives no bonus for 1999 or for the
pre-closing period) is less than his pre-closing accrued bonus,
US Purchaser shall pay the difference to US Vendor.
(b) MARSHALL, TEXAS GAIN SHARE PLAN. Pursuant to US
Purchaser's assumption of the Marshall, Texas Gain Share Plan, US
Vendor shall not pay out at Closing any amounts accrued under
that Plan for the December 1, 1998 through November 30, 1999 Gain
Share Period. US Purchaser shall be responsible for payment of
all bonuses under that Plan for the December 1, 1998 to November
30, 1999, Gain Share Period at the normal time and in the normal
manner.
VIII. The US Vendor will use its reasonable efforts to close out
all inventory xxxxxx relating to copper and aluminum. For the avoidance of
doubt, there is no obligation to close out any xxxxxx relating to open purchase
orders.
IX. EFFECT OF AMENDMENT NO. 1. Except as expressly amended and
modified herein, all other terms of the Asset Purchase Agreement shall remain
in full force and effect as originally made and entered into by the parties
thereto.
X. GOVERNING LAW. This Amendment shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed wholly within such
jurisdiction.
XI. NECESSARY DOCUMENTS. The parties hereto agree to execute or
cause to be executed at any time, any and all other documents or instruments
necessary to carry out the terms of this Amendment.
XII. COUNTERPARTS. This Amendment No. 1 may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument, and all
signatures need not appear on any one counterpart.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to
be executed as of the date first written above.
BICC CABLES CORPORATION
By: /s/ Xxxx X. Berndorff
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Name: Xxxx X. Berndorff
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Title: Vice President
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BICC CABLES CANADA INC.
By: /s/ Xxxx X. Berndorff
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Name: Xxxx X. Berndorff
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Title: Vice President
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PYROTENAX USA INC.
By: /s/ Xxxx X. Berndorff
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Name: Xxxx X. Berndorff
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Title: Vice President
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BICC PLC
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Director
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GK TECHNOLOGIES,
INCORPORATED, in its capacity
as US Purchaser and Canadian Purchaser
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: Executive Vice President
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GENERAL CABLE CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Executive Vice President
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BICC GENERAL PYROTENAX
CABLES, LTD.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
----------------------------------
Title: Executive Vice President
----------------------------------
BICC GENERAL CABLE (USA),
LLC
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
----------------------------------
Title: Executive Vice President
----------------------------------
BICC GENERAL CABLE
COMPANY
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
----------------------------------
Title: Executive Vice President
----------------------------------
-10-
