Delaware

0-20853

04-3219960

(State or other jurisdiction

(Commission

(IRS employer

of incorporation)

file number)

identification no.)

275 Technology Drive, Canonsburg, Pennsylvania

15317

(Address of principal executive offices)

(Zip code)

  2.1

Agreement, dated February 4, 2003, between the Registrant and AEA.*

99.1

Press release, dated February 26, 2003.

* Certain exhibits and schedules to this Exhibit were omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy of any omitted exhibit or schedule will be furnished to the Commission upon request.

Exhibit

Description

  2.1

Agreement, dated February 4, 2003, between the Registrant and AEA.

99.1

Press release, dated February 26, 2003.

Clause

Page

1

DEFINITIONS

1

2

SALE AND PURCHASE

15

3

CONSIDERATION

16

4

ADJUSTMENT TO CONSIDERATION

16

5

CONDITIONS

16

6

PRE-COMPLETION

17

7

RESCISSION

20

8

COMPLETION

21

9

GUARANTEES

23

10

WARRANTIES

23

11

WITHHOLDINGS, ETC

25

12

COVENANTS

26

13

INDEMNITIES

30

14

CONTRACTS

41

15

GENERAL

42

16

ANNOUNCEMENTS

43

17

COSTS

43

18

NOTICES

43

19

GOVERNING LAW AND JURISDICTION

44

SCHEDULES

1

Details of each CFX Company

2

PART A—The Properties

3

Business Intellectual Property Rights

PART 1:    CFX INTELLECTUAL PROPERTY RIGHTS

PART 2:    LICENSED INTELLECTUAL PROPERTY RIGHTS

PART 3:    PATENTS

PART 4A:    REGISTERED TRADEMARKS

PART 4B:    UNREGISTERED TRADEMARKS

PART 5:    DOMAIN NAMES

4

Non-Taxation Warranties

5

Completion Arrangements

6

Limitation of Liability

7

Tax Deed

PART 1—INTERPRETATION

1    Interpretation

PART 2—TAX COVENANT

2    Covenant

3    Quantification

4    Exclusions

5    Due Date for Payment

6    Time Limitations

7    Claims Procedure

8    Degrouping

9    Mitigation of Liability

10  Savings, Repayments And Overprovisions

11  Purchaser’s Covenant/Undertaking

Clause

Page

12  Tax Returns

13  Surrender of Tax Losses

14  Sale of Stock of Us Companies

16  General

8

Tax Representations and Warranties for AEA Technology Engineering Software Ltd And 2011767 Ontario Inc.

9

Tax Representations and Warranties in respect of the CFX India Branch Office

10

Tax Representation and Warranties for CFX Asia Pacific KK

11

Tax Representations and Warranties for CFX US

12

Tax Representations and Warranties for AEA Technology Engineering Software Limited (UK)

13

Tax Representations and Warranties for CFX Germany

14

Completion Balance Sheet

15

Employees

16

Records Agreement

1    TRANSFER OF RIGHTS AND OBLIGATIONS

2    NOTICES

3    INDEMNITY

4    GUARANTEE

17

Asset Purchase Agreement

18

Return of Cash

19

Part 1—German Share Transfer Agreement

20

Guarantee and Retention Fund Instruction Letter

21

Employee Details

“Accounts”

the aggregated financial statements of the CFX Business, prepared under US GAAP, including the audited balance sheet, income statement, statement of cash flows for the financial period 1 April 2001 to 31 March 2002 and the reviewed but not audited balance sheet, income statement and statement of cash flows for the financial period 1 April 2002 to 30 September 2002

“Additional Adjustments”

the adjustments to the Consideration provided for in clause 4.1 calculated in accordance with Schedule 21 constituting, in the aggregate, an increase in the Consideration of no greater than $3.0 million

“AEAT France”

AEA Technology France Sarl, a wholly owned subsidiary of the Vendor incorporated under the laws of France

“AEAT US”

AEA Technology Inc, a corporation incorporated under the laws of Delaware and having its main place of business at 241 Curry Hollow Road, Pittsburgh, Pennsylvania

“Allocation Report”

a report by Standard & Poors on the allocation of the Consideration between the CFX Companies and the French Assets

“Anniversary Date”

as defined in the Rules of the Pension Scheme at Completion Date

“Asset Purchase Agreement”

the agreement between the Purchaser and AEAT France for the purchase of certain assets relating to the CFX Business listed in Schedule 17

“Associated Company”

any company, not being a CFX Company, which at the relevant time is:

(a)

a holding company of the Vendor; or

(b)

a subsidiary or subsidiary undertaking of the Vendor; or

(c)

a subsidiary or subsidiary undertaking (other than the Vendor itself) of any such holding company; or

(d)

under the control of the Vendor;

SAVE THAT for the purposes of clauses 12.7, 13.9 and 14.1 only all references in this definition to “Vendor” shall be deemed to include the words “and/or the Purchaser” as appropriate

“Bank Guarantee”

the guarantee provided by National Westminster Bank plc over payment of $1,000,000 pursuant to clause 3.2

“Business Day”

any day (other than a Saturday or Sunday) on which banks are open in London

“Business Intellectual Property Rights”

all Intellectual Property Rights owned by, licensed to or otherwise utilised by any of the CFX Companies or, in respect of the CFX France Business, by AEAT France in or for the benefit of the CFX Business, subject to any right, title or interest of UKAEA in the UKAEA CS and IP Agreements, particulars of such rights being set out in Schedule 3

“CA 1985”

the Companies Act 1985 as amended

“Canadian Plan”

each material Employee Benefit Plan of any Employee or former employee, employed in Canada by AEA Technology Engineering Software Ltd and collectively known as the “Canadian Plans”

“Canadian Shares”

all of the issued and outstanding shares in the capital of CFX Canada

“Canadian Subsidiary”

AEA Technology Engineering Software Ltd (Canada), a company incorporated under the laws of Ontario with registered number 1210956 with its registered office at 554 Parkside Drive, Waterloo

“CFX Business”

the business of developing and supplying computational fluid dynamics software and associated services worldwide from locations in the UK, Canada, Germany, France, Japan, India and the United States but excluding the EASA Business

“CFX Canada”

2011767 Ontario Inc. (Canada), a corporation incorporated under the laws of Ontario

“CFX Company”

each of the companies detailed in Schedule 1 and “CFX Companies” shall be construed accordingly

“CFX France Business”

the business of AEAT France transferred to the Purchaser pursuant to the Asset Purchase Agreement

“CFX Germany”

AEA Technology GmbH, a corporation incorporated under the laws of Germany

“CFX India Branch Office”

the branch office of CFX UK situated at 16 Jaya Mahal Main Road, Bangalore, 560, India

“CFX Intellectual Property Rights”

all Business Intellectual Property Rights that are not Licensed Intellectual Property Rights

“CFX Japan”

CFX Asia Pacific KK, a corporation incorporated under the laws of Japan with registered number 0200-01-039181

“CFX UK”

AEA Technology Engineering Software Limited, a corporation incorporated under the laws of England and Wales with registration no. 03524833

“CFX US”

AEA Technology Engineering Software Inc (US), a corporation incorporated under the laws of Delaware and having its main place of business at 2000 Oxford Drive, Suite 110, Bethel Park, Pittsburgh

“Claim”

any claim which is or would (but for the provisions of Schedule 6) be capable of being made against the Vendor in respect of liability for breach of any of the Warranties

“Clearing Bank”

a member bank of the UK national cheque clearing system

“COBRA”

the continuation of health insurance coverage provisions of the Consolidated Omnibus Budget Reconciliation Act of 1986, set forth in Section 4980B of the Code, Section K, chapter 100 of the Code and ERISA sections 601 to 608

“Code”

the United States Internal Revenue Code of 1986 (as amended)

“Completion”

consummation of the sale and purchase contemplated herein in accordance with the provisions hereof

“Completion Balance Sheet”

the balance sheet of the CFX Business to be prepared following Completion in accordance with the provisions of Schedule 14

“Completion Date”

the date on which Completion actually occurs in accordance with clause 8.1

“Completion Earnings”

means an employee’s Pensionable Earnings calculated at Completion Date assuming that Completion Date qualifies as being an Anniversary Date

“Completion Payment”

the sum of $21,000,000 payable at Completion pursuant to clause 8.2

“Conditions”

the conditions precedent set out in clause 5 and Schedule 21

“Confidential Information”

all information of a confidential or proprietary nature (whether or not specifically labeled or identified as “confidential”), including Know-how, in any form or medium, that relates to the CFX Business or any customer or supplier of the CFX Business and shall include but not be limited to:

·

business and marketing strategy and plans;

·

budgets, management accounts, bank account details and other confidential financial data;

·

business sales and marketing methods, confidential techniques and processes used for development of products and services;

·

details of products and services being developed, including research and development reports, confidential aspects of computer technology and systems, including source and object codes, confidential algorithms developed or used, information relating to proprietary computer hardware or software (including updates) not generally known to the public and details of IP solutions to accompany CFX Business’s products; patent applications in the course of preparation or consideration by the relevant authorities;

·

confidential methods and processes, information relating to the running of CFX Business which is not in the public domain, including details of salaries, bonuses, commissions and other employment terms;

·

the names, addresses and contact details of any customers or Prospective Customers including customer lists in whatever medium this information is stored and the requirements of those customers or the potential requirements of Prospective Customers for any products or services;

·

the terms on which CFX Companies do their business with advertisers, customers and suppliers, including any pricing policy and the terms of any partnership, joint venture or other form of commercial co-operation or agreement that any CFX Company enters into with any third party; the content of bids and tenders submitted by the Company to Prospective Customers;

·

software, technical information and product designs necessary for the development, maintenance or operation of any of websites and the source and object code of each website; and

any other information in respect of which any CFX Company is bound by an obligation of confidence owed to a third party, in particular the content of discussions or communications with any Prospective Customers or prospective business partners, save that any information in respect of Prospective Customers of the EASA Business shall not be deemed to be Confidential Information for the purpose of this definition

“Consideration”

$21,000,000 being the aggregate consideration payable for the Shares and the French Assets as stated in clause 3.1 and as adjusted in accordance with clause 4.1

“Consultants”

each consultant or self-employed contractor engaged by a CFX Company, or in respect of the CFX France Business, AEAT France and any other individual engaged by a CFX Company, or in respect of the CFX France Business, AEAT France, on a contract pursuant to which they are obliged to personally provide or perform services for a value of in excess of £10,000 per annum or in respect of software development or other work concerning the Business Intellectual Property to that CFX Company, or in respect of the CFX France Business, AEAT France

“Deferred Benefits”

are the deferred pension, death in service and death in deferment benefits and, where relevant, separate lump sum, in respect of the relevant Employee under the Pension Scheme as at the Completion Date

“Disclosure Bundle”

the agreed bundle of documents attached to and referenced in the Disclosure Letter, a copy of the index having been initialled by the Vendor and the Purchaser

“Disclosure Letter”

the letter having the same date as this Agreement from the Vendor to the Purchaser qualifying the Warranties

“EASA Business”

the development, production, marketing and sale of software for the provision of customised user interfaces to customers software applications together with associated devices and consultancy (this includes the development, production, marketing and sale of software products needed to interface with CFD software but does not include the development, production, marketing and sale of CFD software itself)

“EASA Reorganisation”

the transfer of the EASA Business from CFX UK and CFX US to the Vendor and AEA Engineering Services Inc pursuant to an agreement in the agreed form to be executed prior to Completion

“EC Treaty”

The Treaty of Rome 1957, as amended

“Employees”

the employees employed in, and officers engaged by each CFX Company or, in respect of the CFX France Business, AEAT France on the date of this Agreement (including, for the avoidance of doubt, Lars Kaltin)

“Employee Benefit”

any emolument (other than salary or base pay) or any other benefit granted or accruing under any contract of employment, contract for services or Employee Benefit Plan other than those deriving from the Pension Scheme including (without limitation) any plan, programme, arrangement, agreement, policy or understanding, whether written or unwritten, relating to any bonus, incentive or deferred compensation, severance, termination, retention, change of control, retirement income, savings, health and welfare, medical, disability insurance, stock option, stock appreciation, stock purchase, phantom stock or other equity-based, performance or other employee or retiree benefit or compensation that provides or may provide benefits or compensation in respect of any Service Provider, as well as any beneficiaries or dependants of any such Service Provider (each a “Participant,” collectively, the “Participants”) or under which any Participant is or may become eligible to participate or derive a benefit and that is or has been maintained or established by the Vendor, in respect of the CFX France Business, AEAT France or any CFX Company or to which the Vendor, AEAT France (in respect of the CFX France Business) or any CFX Company contributes or is or has been obliged or required to contribute

“Employee Benefit Plan”

any “employee benefit plan” as defined in section 3(3) of ERISA

“Encumbrance”

any mortgage charge, pledge, lien, assignment by way of security, option, restriction, claim, right of pre-emption, right of first refusal, third party right or interest, title retention, other encumbrance or security interest of any kind, or other arrangement conferring a priority of payment

“ERISA”

the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder

“European Directive”

any directive issued by or on behalf of the European Commission

“French Assets”

the assets to be purchased pursuant to the Asset Purchase Agreement

“Gemini Property”

the premises described in paragraph 1 of Part A Schedule 2

“German Reorganisation”

the transfer of the Vendor’s n-Code business from CFX Germany into n-Code GmbH, a German law limited liability company registered at the commercial register of the local court in Munich under number HRB 145383 pursuant to an agreement to be executed a copy of which is at reference Q45 in the Disclosure Bundle Index

“German Shares”

all of the issued shares in the capital of CFX Germany to be transferred pursuant to the German Share Transfer Agreement

“German Share Transfer Agreement”

means the agreement in the form attached to Schedule 19, Part 1 to be notarised in accordance with German law

“Guarantee and Retention Fund Instruction Letter”

the Letter in the form of Schedule 20 from the Vendor and the Purchaser to the Vendor’s Solicitors and the Purchaser’s Solicitors relating to the Bank Guarantee and the Retention Fund

“Indian Reorganisation”

the (i) establishment of CFX India Branch Office; (ii) transfer of the CFX Business carried on by Vendor’s Indian Branch Office from the Vendor to CFX UK; (iii) CFX UK acquiring all permits, licences, registrations, approvals and certificates necessary for the CFX India Branch Office to carry on the CFX Business in India and (iv) the obtaining of the leasehold rights to the property at # 16, Jayamahal Main Road, Bangalore—560046 Karnataka by CFX UK from its owners pursuant to the execution of the lease deed in respect of the said leasehold property and the registration of the same with the registrar of assurances, Karnataka

“Intellectual Property Rights”

all worldwide right, title and interest in and to the following:

(a)

Software;

(b)

technology, inventions, discoveries, designs and all improvements thereto (whether patentable or not) and all industrial designs, patents, patent

applications and patent disclosures and utility models, together with all re-issuances, continuations, continuations-in-part, revisions, extensions and re-examinations thereof;

(c)

trade marks, service marks, famous names, trade names, logos, Internet domain names and corporate names and applications, registrations and renewals related thereto (or portions thereof) including moral rights and including goodwill associated therewith;

(d)

copyrightable works, copyright works, and applications, registrations, and renewals related thereto and whether vested future or contingent;

(e)

designs and design registrations and applications and renewals related thereto;

(f)

database rights;

(g)

Know-how; and

(h)

other intellectual property rights of a proprietary nature including, but not limited to derivative rights, industrial property, data, models, integrated circuit topographies and registered and unregistered mask works

“Intra Group Obligations”

any obligation to perform, including an obligation of any debt, trading and other inter company balances on inter company loan and trading accounts including any currency accounts, owed by the Vendor or any Associated Company to any CFX Company or, in relation to the CFX France Business, AEAT France or vice versa

“Japanese Shares”

all of the issued and outstanding shares in the capital of CFX Japan

“Know-how”

all written, machine readable or otherwise tangible technical information, trade secrets, know-how, improvements, algorithms, formulae, techniques and processes used solely in the CFX Business or relating to customers or suppliers of the CFX Business as at the date of this Agreement

“Licensed Intellectual Property Rights”

those Business Intellectual Property Rights licensed to a CFX Company by any person who is not a CFX Company, the Vendor or, in respect of the CFX France Business AEAT France, including but not limited to those set out in Part 2 of Schedule 3

“Non-UK Properties”

the premises described in paragraph 2 Part A Schedule 2

“Non-US Plan”

other than the Pension Scheme, each material Employee Benefit of any Employee or former employee (or Employee’s or former employee’s beneficiaries) employed outside the United States by the CFX Business and collectively known as the “Non-US Plans”

“Payment Amount”

an amount calculated as being 1.4% of the total Pensionable Earnings of such of the Employees in respect of whom Deferred Benefits are increased or are to be increased in accordance with clause 13.30

“Pension Indemnity Amount”

is in relation to each payment relating to any Pension Liability to or in respect of each Employee:

(a)

the total pension related benefits which calculated in any way by reference to any period of pensionable service prior to the Completion Date paid or payable in combination from the Pension Scheme and the Purchaser and any CFX Company or by any pension scheme or arrangement sponsored by the Purchaser or any CFX Company to or in respect of an Employee and calculated on the assumption (i) if Pensionable Earnings are set once a year on the Anniversary Date, that Pensionable Earnings shall have increased at the rate of 2 per cent per annum in excess of UK price inflation on a compound basis on each Anniversary Date (except 1 April 2003) during service with CFX UK after the Completion Date, and then multiplied by the Pre-Completion Earnings Multiplier or (ii) if Pensionable Earnings are set immediately on any increase to an Employee’s earnings, that Pensionable Earnings shall have increased at the rate of 2 per cent per annum in excess of UK price inflation on a compound basis during service with CFX UK after the Completion Date; less

(b)

such Employee’s Deferred Benefits after the increase pursuant to clause 13.22 below) as are actually paid

“Pension Liability”

is a liability on the Purchaser to pay to or in respect of an Employee (who immediately prior to the Completion Date was an active member of the Pension Scheme) benefits payable on death in service, voluntary early retirement, ill-health early retirement or death in deferment arising from former participation in the Pension Scheme

“Pension Scheme”

the AEA Technology Pension Scheme

“Pensionable Earnings”

as defined in the Rules of the Pension Scheme at Completion Date

“Permitted Activities”

the research and development, consulting, support, marketing, sale and licensing of original process methods, process designs and hardware products, incorporating power fluidic, vortex and process intensification technologies, and related process control systems and software, consultancy services by the Vendor’s Canadian subsidiary Kinetric’s Inc which may use CFD software for the analysis of scientific and engineering problems but does not include the sale of CFD software (and for the avoidance of doubt the EASA Business)

“Pre-Completion Earnings Multiplier”

means the greater of:

(a)

1 plus the increase in price inflation over the year from 1 April 2002 to 31 March 2003 plus 2%; and

(b)

Completion Earnings divided by Pensionable Earnings as at Completion Date

“Properties”

the properties described in Schedule 2 and “Property” shall mean any one of them

“Prospective Customer”

any person with whom any CFX Company or, in respect of the CFX France Business, AEAT France is, at the Completion Date, in negotiations or is tendering for the supply of its goods and services

“Purchaser’s Solicitors”

Brobeck Hale and Dorr of Alder Castle, 10 Noble Street, London EC2V 7QJ or its successors in business

“Records Agreement”

the agreement to be entered into at Completion between UKAEA, the Vendor and the Purchaser in the form attached to Schedule 16

“Retention Fund”

shall have the meaning set out in Schedule 20

“Reorganisation”

together the German Reorganisation, the EASA Reorganisation and the Indian Reorganisation

“Senior Employee”

any employee of a CFX Company who receives an annual gross salary in excess of £45,000 or the equivalent in local currency

“Service Provider”

any Employee (or former employee), director (or former director) or Consultant (or former Consultant) of any CFX Company or, in respect of the CFX France Business, to AEAT France

“Settled Claim”

the amount payable in respect of a breach of obligations, indemnities or undertakings on the part of the Vendor in this Agreement (but excluding any claim under the Tax Deed), the Asset Purchase Agreement or agreements governing the Reorganisations, including:

(i)

a Claim agreed by the Vendor and the Purchaser or otherwise determined in any relevant proceedings in respect of a Claim;

(ii)

any amount due pursuant to clause 4.1; and

(iii)

any amount due on an indemnity basis pursuant to this Agreement, the Asset Purchase Agreement or the agreements governing the Reorganisations agreed by the Vendor and the Purchaser or otherwise determined in any relevant proceedings in respect of such indemnity

“Shares”

the Canadian Shares, the German Shares, the Japanese Shares, the UK Shares and the US Shares

“Software”

any form of computer program, including applications software, operating systems, databases, software libraries, web pages and other code, whether in source, object or machine code form and all related or ancillary documents including source code listings

“Tax” or “Taxation”

has the same meaning as in the Tax Deed

“Tax Deed”

the tax deed to be entered into at Completion between the Vendor and the Purchaser in the form attached to Schedule 7

“Tax Warranties”

has the same meaning as in the Tax Deed

“Taxes Act”

the Income and Corporation Taxes Act 1988

“Transferee Company”

has the meaning given to it in clause 6.1

“Transitional Services Agreement”

the agreement having the same date as this agreement between the Vendor and the Purchaser for the supply of administrative and business support services for the CFX Companies after Completion

“TUPE Regulations”

Transfer of Undertakings (Protection of Employment) Regulations 1981 (as amended)

“TUPE Transfer”

the transaction effected by (or documented by) the TUPE Transfer Agreement

“TUPE Transfer Agreement”

the agreement dated 17 July 2002 between the Vendor and CFX UK for the sale and purchase of the CFX Business in the UK (including its employees)

“UKAEA”

United Kingdom Atomic Energy Authority

“UKAEA CS and IP Agreements”

the computer software agreement and the intellectual property agreement each dated 31 March 1996 and made between UKAEA and the Vendor

“UKLA”

United Kingdom Listing Authority

“UK Shares”

all of the issued and outstanding shares in the capital of CFX UK

“Underlease”

an underlease in the form agreed between the parties in accordance with the provisions of Schedule 2

“US GAAP”

the United States generally accepted accounting principles

“US Plan”

each material Employee Benefit of any Employee or former employee (or Employee’s or former employee’s beneficiaries) employed in the United States by the CFX Business and collectively known as the “US Plans”

“US Shares”

all of the issued and outstanding shares of the capital stock of CFX US

“VATA”

the Value Added Tax Act 1994

“Vendor’s India Branch Office”

the branch office of the Vendor, established at Bangalore, India pursuant to the approval of the Reserve Bank of India granted via letter no. EC. CO..FID/ 10 1 06 02 (B 372) 1999 2000, dated June 26, 2000

“Vendor’s Solicitors”

Eversheds of Cloth Hall Court, Infirmary Street, Leeds LS1 2JB

“Warranties”

the representations and warranties set out or referred to in clause 10.1

“$” or “dollar”

the lawful currency of the United States unless indicated otherwise

“CA$”

the lawful currency of Canada;

The Shares shall be sold free from all Encumbrances and other rights exercisable by third parties and the French Assets shall be sold free from all Encumbrances and

The Purchaser may by notice in writing prior to Completion request that any of the Shares or the French Assets be transferred to and acquired by one or more transferee companies on Completion as the Purchaser may request (a “Transferee Company”) directly from the Vendor in respect of any of the Shares, or AEAT France in respect of the French Assets, in satisfaction of the Vendor’s obligation to transfer or procure the transfer of such Shares or French Assets to the Purchaser pursuant to this

Agreement PROVIDED THAT such request shall not delay the transfer of any of the Shares or the French Assets. The Vendor may require such Transferee Company to agree to be bound to the same terms of this Agreement as the Purchaser in relation to the Shares and the French Assets transferred to such Transferee Company instead of (but not in addition to) the Purchaser provided that the Vendor shall have no increased liability as a result of such transfer and the Purchaser’s rights to rescind shall be waived to the extent that the Vendor’s ability to satisfy any condition is effected by any such transfer.

The Purchaser may by notice in writing to the Vendor at any time prior to Completion elect to terminate this Agreement if any fact, matter or event (whether existing or occurring on or before the date of this Agreement or arising or occurring

The Purchaser will procure that within 14 days after Completion a shareholders’ meeting shall resolve the change of the name of CFX Germany to CFX GmbH or CFX Ansys GmbH in any event a name which does not include any reference to AEA Technology. Such shareholders’ meeting shall be duly notarised and the

Purchaser further procures that immediately following the above shareholders’ meeting the change of name shall be filed with the competent Commercial Register.

if the Vendor delivers to the Purchaser after Completion, but prior to the Remittance Date, a certificate issued by the Minister of National Revenue under either subsection 116(2) or 116(4) of the ITA and such certificate fixes a certificate limit (which in the case of a certificate issued under subsection 116(4) means the amount recorded thereon as proceeds of disposition) which is less than the Proceeds of Disposition, the Purchaser shall pay forthwith to the Vendor upon delivery to the Purchaser of such

certificate the portion of the Proceeds of Disposition withheld equal to the amount of the excess, if any, of:

The Vendor holds CFX Germany, CFX UK and the Purchaser harmless against all claims, liabilities or expenses (properly incurred taking into account the context of the liability), losses, fines, penalties and awards (“Losses”) incurred by CFX Germany, CFX UK or the Purchaser in excess of the amount specified in the relevant limitation or exclusion clauses set out in any Contract (as defined in clause 13.2), to

the extent that such Losses arise out of or in connection with any Specified Cause (as defined in clause 13.2).

If the Purchaser reasonably believes that, in order to avoid a matter which would otherwise have a detrimental effect on the goodwill of the Purchaser or the CFX Companies (or any of them) (provided that where an Indemnity Claim relates to an employee liability if in the Purchaser’s reasonable

opinion such action by the Vendor would have a detrimental effect on the customers, suppliers or its employee relations, it will also be deemed to have a detrimental effect on the goodwill of the Purchaser or the CFX Companies (or any of them)), it is necessary to settle or compromise any dispute or proceedings underlying an Indemnity Claim then it shall be entitled to conclude such settlement or compromise without the prior consent of the Vendor provided that it shall first notify the Vendor of its intention to do so and provided that in respect of any employment claim the amount that the Purchaser may recover from the Vendor shall not exceed an amount that a court tribunal or ombudsman might reasonably be expected to award if liability was established as determined by a Queen’s Counsel with employment expertise (appointed and instructed jointly by the Vendor and the Purchaser whose fees shall be payable equally by the Vendor and the Purchaser) or, in respect of a dispute or proceedings in a jurisdiction other than England and Wales or lawyer of comparable seniority in such jurisdiction.

In the event that an Indemnity Claim becomes a Settled Claim, the Vendor shall make payment direct to the Purchaser (or as the Purchaser may direct) within ten working days of the Purchaser notifying the Vendor in writing that an Indemnity Claim has become a Settled Claim or of the Purchaser (or any of the CFX Companies) making the equivalent payment to or in respect

of any Service Provider or third party in accordance with this clause 13.16.8.

use reasonable endeavours (to include, without prejudice to the generality of the foregoing, the payment of any contributions reasonably required by the trustees of the Pension Scheme) to procure that as soon as reasonably practicable after the relevant request all necessary consents in relation to the payment of all benefits accrued in the Pension Scheme are provided should

Age of Employee in whole years as

at the Completion Date

Percentage increase to the relevant

Employee’s Deferred Benefits under the

Pension Scheme calculated as at the

Completion Date

24

22%

25

23%

26

24%

27

25%

28

26%

29

27%

30 to 50

28%

51

26.2%

52

24.4%

53

22.6%

54

20.8%

55

19%

56

17.2%

57

15.4%

58

13.6%

59

11.8%

60

10%

The Vendor shall procure that the Deferred Benefits (as increased in accordance with clause 13.22 above) payable in accordance with the rules of the Pension Scheme to or in respect of Employees (who immediately prior to the Completion Date are active members of the Pension Scheme) on their retirement prior to their normal retirement

ages are calculated using the same early retirement factors as are applied to active members of the Pension Scheme who retire prior to their normal retirement ages.

other than in respect of correspondence between the Purchaser (and any CFX Company) and its professional advisers, any accounts, documents and records which are relevant to any Pension Claim and which are within the power, possession or control of the Purchaser and/or the relevant CFX Companies in

order to, at the Vendor’s own expense, examine, photograph and take copies of such accounts, documents and records;

In the event that the Vendor fails to procure the increase to Deferred Benefits in accordance with clause 13.29 above within the period of 21 days referred to therein, the Vendor shall repay to the Purchaser the Payment Amount in full. For the

avoidance of doubt the Vendor shall remain under an obligation to increase Deferred Benefits in accordance with clause 13.29 notwithstanding repayment of the Payment Amount in accordance with this clause 13.30.

Following Completion, the Vendor shall subject to its obligations under the Data Protection Act 1998, upon reasonable notice and subject to reimbursement of its

reasonable photocopying costs, provide to representatives of the Purchaser or of any CFX Company access to any and all documents held in any form by the Vendor, or any Associated Companies of the Vendor, which relate in any way to the employment or engagement of any Service Provider or historical customer/supplier invoices which have been transferred to Hyprotech UK Limited and shall upon request provide copies of such documents to the Purchaser (or as it directs). Further the Vendor shall use its reasonable endeavours to assist representatives of the Purchaser or of any CFX Company in obtaining access to documents held by any third party which relate to the employment or engagement of any Service Provider or historical customer/supplier invoices which have been transferred to Hyprotech UK Limited.