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Exhibit 10.17
AMENDMENT AND ASSIGNMENT OF THE SHARE PURCHASE AGREEMENT
THIS AMENDMENT AND ASSIGNMENT OF THE SHARE PURCHASE AGREEMENT (this
"Amendment") is made as October 2, 1998, by and among Norcross Safety Products
L.L.C., a Delaware limited liability company ("Norcross"), North Safety Products
Corp., a Delaware corporation and an Affiliate of Norcross ("NSP Corp."), Siebe
plc, a British public limited company ("Siebe"), Siebe International Limited, a
British private limited company ("Siebe International"), Deutsche Siebe GMBH, a
German private company limited by shares ("Deutsche Siebe") and Siebe Inc., a
Delaware corporation ("Siebe US"), NSP Corp., Norcross, Siebe, Siebe
International, Deutsche Siebe and Siebe US are collectively referred to herein
as the "Parties" or individually as a "Party." Capitalized terms not otherwise
defined herein shall have the meanings ascribed to such terms in the Share
Purchase Agreement (the "Share Purchase Agreement"), dated as of September 1,
1998, by and among the Parties (other than NSP Corp.).
WHEREAS, Norcross desires to assign certain of its rights and
obligations under the Share Purchase Agreement to NSP Corp., and NSP Corp.
desires to assume all such rights and obligations of Norcross under the Share
Purchase Agreement.
WHEREAS, the Parties desire to amend the Share Purchase Agreement to
reflect the assignment of certain rights and obligations under the Share
Purchase Agreement from Norcross to NSP Corp. and to add NSP Corp. as a party
thereto and to further amend such Share Purchase Agreement as hereinafter
described.
NOW THEREFORE, in consideration of the mutual agreements and covenants
made herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
SECTION 1. ASSIGNMENT OF SHARE PURCHASE AGREEMENT. Pursuant to
Section 10.5 of the Share Purchase Agreement, Norcross hereby assigns all of its
rights and obligations as "Norcross" under Sections 2.1(A)(1), 2.1(A)(3),
2.1(A)(4), 2.4(A)(1), 2.4(A)(3), 2.4(A)(4), 2.4(A)(5), 2.4(A)(6), 2.4(C) and 2.5
of the Share Purchase Agreement to NSP Corp., and NSP Corp. hereby accepts and
assumes all of such rights and obligations under the Share Purchase Agreement.
SECTION 2. AMENDMENTS TO THE SHARE PURCHASE AGREEMENT.
(a) Section 2.2 of the Share Purchase Agreement is hereby amended
and restated in its entirety as follows:
For purposes of this Purchase Agreement the term "Purchase Price means
$225,000,000 PLUS or MINUS the amount of the Adjustment.
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(b) Sections 2.4(B) and (C) of the Share Purchase Agreement are
hereby amended and restated in its entirety as follows:
(A) CASH PAYMENT AT CLOSING. At the Closing. Norcross will pay the
Siebe Sellers $207,500,000 in cash as follows:
(1) Norcross will pay Siebe $28,600,000 for the North Safety
Products Shares;
(2) Norcross will pay Siebe International $12,600,000 for the
James North (Africa) Shares;
(3) Norcross will pay Deutsche Siebe $2,700,000 for the ISP
Shares;
(4) Norcross will pay Siebe $147,800,000 for the Siebe North
Shares;
(5) Norcross will pay Siebe $15,000,000 in consideration of
the covenant contained in Section 7.9; and
(6) Norcross will pay Siebe $800,000 in consideration of the
Trademark License Agreement.
(B) DELIVERY OF DEFERRED NOTE. At the Closing, NSP Holdings L.L.C.
will deliver to Siebe the Deferred Note in the principal amount of
$17,500,000 in the form attached hereto.
(c) Section 4.11 of the Share Purchase Agreement is hereby amended
by adding at the end of such Section 4.11 the following provision:
"(E) With respect to the conveyance of the landfill property in
Clover, SC (the "Landfill Parcels") and the creation of an easement for
access to such Landfill Parcels (the "Easement Parcels") pursuant to
Section 4.11(B) and Appendix H of this Purchase Agreement. Siebe and
Norcross agree as follows:
(i) Prior to the Closing. (i) Siebe US shall cause Siebe North,
Inc., a Delaware corporation ("SNI"), as owner of the Landfill
Parcels and wholly-owned subsidiary of Siebe North, to execute
and deliver a quit claim deed, in form and substance
satisfactory to Norcross (the "Clover Deed") conveying the
Landfill Parcels to Siebe Properties, L.L.C., a Delaware limited
liability company and wholly-owned subsidiary of Siebe US
("Siebe Properties"), and (ii) Siebe US shall cause SNI and
Siebe Properties to enter into and deliver to the other an
easement agreement, in form and substance satisfactory to
Norcross (the "Clover Easement"), granting Siebe Properties the
right of ingress and egress over the Easement Parcels.
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(ii) The Clover Deed and Clover Easement shall be dated prior to the
Closing Date and shall contain a legal description for the
respective Landfill Parcels and Easement Parcels as prepared by
the surveyor engaged by Norcross to survey the Clover, SC
property (the "Survey Legal Descriptions").
(iii) Siebe Properties shall not, and shall not cause, permit or
suffer any other person to, record the Clover Deed or Clover
Easement until a subdivision of the Clover, SC property which
creates separate legal parcels for the Landfill Parcels and
Easement Parcels has been approved by the necessary governmental
authorities and recorded as required under applicable law (the
"Approved Plat of Subdivision").
(iv) If the legal description of the Landfill Parcels or Easement
Parcels in the Approved Plat of Subdivision are different in any
respect from the Survey Legal Descriptions for the Landfill
Parcels or Easement Parcels. Siebe US and Norcross shall cause
SNI and Siebe Properties to substitute the legal descriptions in
the Approved Plat of Subdivision in the Clover Deed and Easement
Agreement (as the case may be) prior to recording such
instruments. The provisions of this 4.11(E) shall survive the
Closing.
(b) Section 7.6 of the Share Purchase Agreement is hereby amended by
adding at the end of such Section 7.6 the following provision:
"Notwithstanding anything to the contrary contained in this Section
7.6, Norcross will not be responsible for, will not be required to obtain
releases with respect to, and will not be required to provide
indemnification for, the existing guarantees for the lease agreements for
the Skokie, Illinois, Maiden, North Carolina, and Cranston, Rhode Island
facilities."
(c) The Share Purchase Agreement is hereby amended as follows:
(i) Until such time as (A) North Safety Products and Siebe
have duly executed a definitive sublease agreement ("Dukinfield Sublease")
with respect to the property located at Tameside Park Astley Street
Ashton-under-Lyne, Dukinfield, England, which North Safety Products
currently occupies pursuant to the consent of Siebe (the "Dukinfield Leased
Property") and (B) North Safety Products has received the consent of the
prime landlord with respect to the Dukinfield Leased Property (the
"Dukinfield Master Landlord") to the Dukinfield Sublease, the parties
hereto covenant and agree that the use and occupancy of the Dukinfield
Leased Property shall be on the terms and conditions contained in Section 3
of Appendix H to the Share Purchase Agreement.
(ii) Until such time as SNI has received the consent of the
Cranston Prime Landlord to the Cranston Assignment and the Cranston
Sublease, the parties hereto covenant
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and agree that the use and occupancy of the Cranston Leased Property shall
be on the terms and conditions contained in Sections 2(a), 2(b) and 2(d) of
Appendix H to the Share Purchase Agreement."
(d) Section 8.2(E) of the Share Purchase Agreement is hereby amended
and restated in its entirety as follows:
"Any liabilities or obligations (whether disclosed in the Disclosure
Package, otherwise disclosed or undisclosed, accrued, absolute, contingent,
unliquidated, known or unknown, due or to become due, and regardless of
when asserted), arising out of, related to, or caused by the condition of,
or activities conducted at, or interest in, the Hyde Facility, the RockFord
Facility and the Clover facility, the capitalization of indebtedness of any
of the North Safety Companies by any of the Siebe Sellers from the date of
the Base-Line Balance Sheet through and including the Closing Date or any
agreements between any of the Siebe Sellers and any of the North Safety
Companies existing prior to or as of the Closing."
(e) The Share Purchase Agreement is hereby amended by adding at the
end of Section 8.2(E) the following provision:
"(F) any and all obligations, costs, liabilities, losses, damages,
claims or expenses (whether disclosed in the Disclosure Package, otherwise
disclosed or undisclosed, accrued, absolute, contingent, unliquidated,
known or unknown, due or to become due, and regardless of when asserted and
including, without limitation, any cost, liability, loss, damage or expense
related to any additional rent, relocation costs and other consequential
damages incurred in obtaining or attempting to obtain substantially
equivalent space) arising out of, related to or resulting from or in
connection with (i) the fact that the Dukinfield Sublease has not been duly
executed by North Safety Products or Siebe or arising out of, related to or
resulting from or in connection with the fact that the North Safety
Products has not received the consent of the Dukinfield Master Landlord to
the Dukinfield Sublease: (ii) any events, circumstances, conditions,
occurrences or state of facts concerning the Dukinfield Leased Property
existing, arising or accruing on or prior to the commencement of the term
of the Dukinfield Sublease; and (iii) any and all terms, covenants,
liabilities or obligations related to repainting, redecorating or otherwise
improving the Dukinfield Leased Property. The provisions of this Section
8.2(F) shall survive the Closing. For purposes of this Section 8.2, an
'affiliate' of Norcross shall include North Safety Products.
(G) any and all obligations, costs, liabilities, losses, damages,
claims or expenses (whether disclosed in the Disclosure Package, otherwise
disclosed or undisclosed, accrued, absolute, contingent, unliquidated,
known or unknown, due or to become due, and regardless of when asserted)
arising out of, related to, or caused by the terms or conditions of, or
activities conducted at, or interest in, or the
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Cranston Leased Property on and after the Assumption Date. The provisions
of this Section 8.2(G) shall survive the Closing."
(f) The parties hereto acknowledge that Section 9.4 of the Share
Purchase Agreement has no further force or effect after the Closing.
(g) Section 10.1 of the Share Purchase Agreement is hereby amended
by adding the following provision at the end of Section 10.1:
"Siebe Sellers hereby covenant and agree to provide reasonably requested
cooperation to Norcross. NSP Corp. and/or the North Safety Companies (at
the requesting entity's sole expense, except to the extent such requesting
party is entitled to indemnification therefor under this Purchase
Agreement) in order to effectuate the transactions contemplated in this
Purchase Agreement and to provide for the orderly transition of the North
Safety Business."
(h) Section 10.3(E) shall be amended by adding the following
provision immediately prior to the period for such provision:
"provided, however, that the Siebe Sellers shall be solely responsible
for the payment of any additional transfer taxes, imposts or duties
resulting from or related to any increase in the issued and outstanding
share capital of North Safety Products or James North (Africa)."
(i) Section 10.5 of the Share Purchase Agreement is amended and
restated in its entirety as follows:
10.5 ASSIGNMENT. The Purchase Agreement will be binding upon and
inure to the benefit of the successors of each of the parties hereto, but
shall not be assignable by either party without the prior written consent
of the other; PROVIDED, HOWEVER, that Norcross or NSP Corp. may, at its
sole discretion, assign, in whole or in part, its rights and obligations
pursuant to the Purchase Agreement and related agreements to one or more of
its affiliates, to any of its financing sources as collateral security, or
in connection with the sale of assets or securities of Norcross, NSP Corp.
or any of the North Safety Company; provided that in the case of a Change
of Control (as defined in the Deferred Note). NSP Holdings L.L.C. shall pay
the Deferred Note in full.
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(j) Section 10.4 of the Share Purchase Agreement is hereby amended
by adding the following address at the subsection thereof providing for notices
to Norcross:
and with a copy to:
North Safety Products Corp.
2211 York Road - Suite 215
Oak Brook, Illinois 60523
USA
Attention: Secretary
Telefax: 1.630.572.8518
(k) Appendix I of the Share Purchase Agreement is amended and
restated in its entirety in the form attached hereto.
SECTION 3. EFFECTIVENESS. Pursuant to Sections 9.1 and 10.5 of the
Share Purchase Agreement, the Share Purchase Agreement is hereby assigned and
amended in accordance with the provisions hereof, and this Amendment shall be
effective and binding on all Parties upon execution. Any reference to "this
Purchase Agreement" in the Share Purchase Agreement, or any reference to the
Share Purchase Agreement in any notice, request, instrument, certificate,
contract or otherwise shall hereafter be deemed to refer to the Share Purchase
Agreement, as hereby amended. Except as modified by this Amendment, the Share
Purchase Agreement shall remain in full force and effect and is hereby ratified
and affirmed in all respects.
SECTION 4. MISCELLANEOUS. Sections 10.4, 10.8, and 10.9 of the Share
Purchase Agreement are hereby incorporated by reference in their entirety,
except that any reference therein to "this Purchase Agreement" shall be treated
as a reference to this Amendment. Section 10.10 of the Share Purchase Agreement
is hereby incorporated by reference in its entirety, except that any reference
therein to "this Purchase Agreement" shall be treated as a reference to the
Share Purchase Agreement, as amended by this Amendment.
* * * * * *
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IN WITNESS WHEREOF, the Parties have executed this Amendment as of the
date above first written.
NORCROSS SAFETY PRODUCTS, LLC
By: /s/ ROBERT A. PETERSON
--------------------------
Its: President
NORTH SAFETY PRODUCTS CORP.
By: /s/ ROBERT A. PETERSON
--------------------------
Its: President
SIEBE PLC
By: /s/ [ILLEGIBLE]
--------------------------
Its:
SIEBE INTERNATIONAL LIMITED
By: /s/ [ILLEGIBLE]
--------------------------
Its: ATTORNEY-IN-FACT
DEUTSCHE SIEBE GMBH
By: /s/ [ILLEGIBLE]
--------------------------
Its: ATTORNEY-IN-FACT
SIEBE INC.
By: /s/ [ILLEGIBLE]
--------------------------
Its: ATTORNEY-IN-FACT
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AMENDED AND RESTATED
Appendix I
EMPLOYEE BENEFITS
The Employee Benefits Agreement will provide the following:
1. GENERALLY
A. Except as provided in paragraph 1.B below, all persons who are
employees of the North Safety Companies immediately before the Closing
(the "Continuing Employees") will continue to be employees of their
respective North Safety Company employers at and immediately after the
Closing, with the effect that no period of unemployment will have
occurred for any of the Continuing Employees as a consequence of the
sale of the North Safety Shares to Norcross.
B. Notwithstanding paragraph 1.A above, the Siebe Sellers shall take such
action as is necessary such that Mr. L.W. Varner, Jr. will cease to be
an employee of any of the North Safety Companies immediately prior to
the Closing.
The Siebe Sellers will assume and be liable for severance and other
payments payable to Mr. L.W. Varner, Jr. solely as a result of his
termination of employment with the North Safety Companies prior to the
Closing and shall indemnify Norcross for any liability relating to
such severance and other payments.
C. Except as expressly provided in this Appendix I, nothing in the
Purchase Agreement will affect or restrict Norcross or its successors
in interest from establishing and changing from time to time the terms
and conditions of employment of North Safety Company employees after
the Closing.
2. CONTINUING EMPLOYEES OF NORTH SAFETY PRODUCTS
The following provisions will apply to the Continuing Employees of North
Safety Products:
A. PENSION PLANS
(1) North Safety Products is a sponsor of the Siebe Pension Scheme,
and the Siebe Executive Pension Scheme (collectively, the "U.K.
Pension Schemes") providing pension benefits to Continuing
Employees of North Safety Products among others.
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Appendix I
(2) Within six months after the Closing, Norcross will establish
one or more new pension schemes (the "Norcross UK Pension
Scheme") for the Continuing Employees of North Safety Products.
(3) From the Closing until the earlier of the date the Norcross UK
Pension Scheme is established and six months after the Closing
(the "Continuation Period"), the Siebe Sellers will cause the
UK Pension Schemes to allow Continuing Employees of North
Safety Products to continue participating in the UK Pension
Schemes under the existing arrangements at the expense of
Norcross, it being understood that in addition to the
contracting out contribution and the Members' own contribution
to the U.K. Pension Schemes, a contribution to Siebe plc will
be required of North Safety Products during the Continuation
Period at the annual rate being contributed during the
Continuation Period by other U.K. Subsidiaries of Siebe plc,
but not in excess of 10% of pensionable earnings for the
Continuation Period.
(4) If the Norcross UK Pension Scheme provides Continuing Employees
of North Safety Products with an Inland Revenue Approved
Scheme, then at the request of Norcross, the Siebe Sellers will
cause the transfer, from the UK Pension Schemes to the Norcross
UK Pension Scheme, of assets equivalent to the actuarial
liabilities of the U.K. Pension Schemes related to the
Continuing Employees who are participants in the Norcross U.K.
Pension Schemes; provided that the amount of assets to be
transferred shall be negotiated in good faith and in accordance
with applicable law by the Siebe Sellers and Norcross.
(5) Norcross will be free to modify, amend, or terminate the
Norcross UK Pension Scheme after the Closing as it chooses, but
only if -
(a) Such modifications or amendments are in accordance with
the terms of the Norcross UK Pension Scheme as in
effect form time to time and in accordance with
applicable law;
(b) Such modifications or amendments continue to give
Continuing Employees credit for participation purposes
and, subject to transfer of assets and liabilities
pursuant to Paragraph 2(A)(4) being completed, for
benefit accrual purposes of their prior service with
North Safety Products, its affiliated companies and/or
predecessors as provided in the affected UK Pension
Schemes; and
(c) Norcross indemnifies the Siebe Sellers and holds the
Siebe Sellers harmless from and against any and all
liabilities, damages, claims, losses, costs, and
expenses (including
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Appendix I
attorneys' fees) arising solely out of or resulting
from any such modification, amendment, or termination.
B. BENEFIT PLANS
(1) North Safety Products participates in the BUPA corporate health
care scheme maintained by Siebe plc (the "Siebe BUPA") for
certain of its Continuing Employees who are in upper management
of North Safety Products and their respective spouses (the
"BUPA Participants"). The coverage of the BUPA Participants in
the Siebe BUPA will cease as of October 1, 1998.
(2) Prior to, but effective as of, October 1, 1998, North Safety
Products will establish a BUPA (the "North Safety BUPA") for
the BUPA Participants and North Safety Products will continue
to sponsor and maintain the North Safety BUPA after the Closing
(3) Norcross will be free to modify, amend, or terminate the North
Safety BUPA after the Closing as it chooses, but only if:
(a) Such modifications or amendments are in accordance with
the terms of the North Safety BUPA as in effect from
time to time and all applicable legal requirements;
(b) Such modifications or amendments continue to give
Continuing Employees credit for participation for their
prior service with North Safety Products, its
affiliated companies and/or predecessors as provided in
the North Safety BUPA; and
(c) Norcross indemnifies the Siebe Sellers and holds the
Siebe Sellers harmless from and against any and all
liabilities, damages, claims, loses, costs, and
expenses (including attorneys' fees) arising solely out
of or resulting from any such modification, amendment,
or termination.
3. CONTINUING EMPLOYEES OF JAMES NORTH (AFRICA)
The following provisions will apply to the Continuing Employees of James
North (Africa) and its subsidiary, James North (Zimbabwe) Pty, Ltd.:
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Appendix I
EMPLOYEE BENEFIT PLANS
(1) James North (Zimbabwe) (Pty.) Ltd. will remain the sponsor of
the James North (Zimbabwe) (Pvt) Ltd. Pension Fund (the "James
North Pension Fund").
(2) James North (Africa) will remain the sponsor of the North
Safety Products (Africa) (Pty) Ltd. Retirement Benefit and Life
Assurance Scheme, the North Safety Products (Africa) (Pty) Ltd.
Pension and Life Assurance Scheme, the North Safety Products
(Africa) (Pty) Ltd. Endorsement No. 1 to Family Benefit Policy
and the North Safety Products (Africa) (Pty) Ltd. Group
Healthbridge Policy (collectively the "James North (Africa)
Plans").
(3) Norcross will be free to modify, amend, or terminate any or all
of the James North Pension Fund and the James North (Africa)
Plans after the closing as it chooses, but only if:
(a) Such modifications or amendment are in accordance with
the terms of the James North Pension Fund and the James
North (Africa) Plans as in effect from time to time and
in accordance with all applicable legal requirements.
(b) Such modifications or amendments continue to give
Continuing Employees credit for participation and
benefit accrual purposes for their prior service with
James North (Africa), its affiliated companies and/or
predecessors as provided in the James North Pension
Fund and the James North (Africa) Plans; and
(c) Norcross indemnifies the Siebe Sellers and holds the
Siebe Sellers harmless from and against any and all
liabilities, damages, claims, losses, costs, and
expenses (including attorneys' fees) arising solely out
of or resulting from any such modification, amendment,
or termination.
4. CONTINUING EMPLOYEES OF ISP
[INTENTIONALLY DELETED]
5. CONTINUING EMPLOYEES OF SIEBE NORTH
The following provisions will apply to Continuing Employees of Siebe North:
A. PENSION PLANS
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Appendix I
(1) Siebe North will remain the sponsor of each of the Siebe North,
Inc. Employees' Pension Plan and the W. H. Salisbury & Company
Employees Pension Plan (collectively, the "Siebe North Pension
Plans").
(2) The Siebe Sellers will cause that portion of the assets held in
the Siebe, Inc. Master Retirement Trust (the "Master Pension
Trust ") and allocable to the Siebe North Pension Plans to be
transferred to one or more new (or existing) trusts ( the
"Norcross Pension Trust(s)") as follows:
(a) Norcross will establish (or designate) the Norcross
Pension Trust(s) as soon as practicable after the
Closing. Norcross will provide the Siebe Sellers with
written evidence, in the form of an IRS determination
letter (and, if such trust is not established after the
date hereof, an opinion of counsel reasonably
acceptable to the Siebe Sellers), no later than 30 days
after Closing that the Norcross Pension Trust(s) is
(are) exempt from taxation under Section 501(a) of the
Internal Revenue Code of 1986, as amended (the "Code").
(b) The Siebe Sellers will cause the trustee of the Master
Pension Trust to calculate the fair market value, in a
manner consistent with the trustee's past practice and
fiduciary duty under the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), that
portion of the assets of the Master Pension Trust that
are allocable to the Siebe North Pension Plans as of
the last calendar day of first calendar month after the
Closing (the "Pension Assets Valuation Date"). The
portion of assets of the Master Pension Trust, as so
valued by the trustee, is called the "Base Asset Value"
below.
(c) As soon as practicable after the trustee of the Master
Pension Trust has completed the valuation described in
paragraph 5(A)(2)(b) above, the trustee of the Master
Pension Trust will transfer to the trustee of the
Norcross Pension Trust(s) an amount (in cash or other
property as Norcross and the Siebe Sellers may agree)
equal to -
(i) the Base Asset Value, PLUS
(ii) interest on the Base Asset Value from the
Pension Assets Valuation Date to the date of
transfer at a rate of interest (the "Short-Term
Rate") equal to the actual
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Appendix I
rate of return realized during such period on
investments held in the Master Pension Trust
allocable to the Siebe North Pension Plans,
MINUS
(iii) the amount of benefit payments (the "Interim
Payments") made from the Pension Assets
Valuation Date to the date of transfer to
employees or their beneficiaries made in
accordance with the provisions of the Siebe
North Pension Plans, MINUS
(iv) interest on the Interim Payments from the date
such payments were made until the date of
transfer at the Short-Term Rate, MINUS
(v) an allocable share of fees and expenses
incurred or paid by the Master Pension Trust in
respect of the period beginning the Closing and
ending the date of transfer.
(3) Norcross will be free to modify, amend, or terminate the Siebe
North Pension Plans after the Closing as it chooses, but only
if -
(a) Such modifications or amendments are in accordance with
the terms of the Siebe North Pension Plans as in effect
from time to time and in accordance with law, including
ERISA;
(b) Such modifications or amendments continue to give
Continuing Employees credit for participation and
benefit accrual purposes for their prior service with
Siebe North or its affiliated companies and/or
predecessors as provided in the Siebe North Pension
Plans; and
(c) Norcross indemnifies the Siebe Sellers and holds the
Siebe Sellers harmless from and against any and all
liabilities, damages, claims, losses, costs, and
expenses (including attorneys' fees) arising solely out
of or resulting from any such modification, amendment,
or termination.
(4) The Siebe Sellers will jointly and severally indemnify and
defend (in the case of third party claims) Norcross and each of
its affiliates from and against any and all liabilities,
damages, claims, losses, costs, and expenses (including
attorneys' fees) arising solely out of both (i) any employee
benefit plan which is subject to Title IV of ERISA (other than
the Siebe North Pension Plans) and (ii) Siebe North having been
under "common control" with Siebe US (within the meaning of
Section 4001 (a)(14) of ERISA).
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Appendix I
B. INVESTMENT PLAN
(1) Siebe North will remain the sponsor of each of the Siebe North, Inc.
Employees' Investment Plan and the W. H. Salisbury & Company Employees
Retirement Plan (collectively, the "Siebe North 401(k) Plans").
(2) The Siebe Sellers will cause that portion of the assets held in the
Siebe Inc. Defined Contribution Plan Master Trust (the "Master 401(k)
Trust") and allocable to the Siebe North 401(k) Plans (and equal to
the account balances under the Siebe North 401(k) Plans) (i) to become
fully vested as of the Closing to the extent not already vested and
(ii) to be transferred to one or more new (or existing) trusts (the
"Norcross 401(k) Trust(s)") as follows:
(a) Norcross will establish the Norcross 401(k) Trust(s) as soon as
practicable after the Closing. Norcross will provide the Siebe
Sellers with written evidence, in the form of an IRS
determination letter (and, if such trust is not established
after the date hereof, an opinion of counsel reasonably
acceptable to the Siebe Sellers), no later than 30 days after
Closing that the Norcross 401(k) Trust(s) is exempt from
taxation under Section 501(a) of the Code.
(b) The Siebe Sellers will cause the trustee of the Master 401(k)
Trust to calculate the fair market value as of the Closing, in
a manner consistent with the trustee's past practice and
fiduciary duty under ERISA, that portion of the assets of the
Master 401(k) Trust that are held on account for the
participants of the Siebe North 401(k) Plans.
(c) As soon as practicable after the trustee of the Master 401(k)
Trust has completed the valuation described in paragraph
5(B)(2)(b) above, the trustee of the Master 401(k) Trust will
transfer to the trustee of the Norcross 401(k) Trust(s) an
amount (in cash or other property as Norcross and the Siebe
Sellers may agree) equal to the total account balances held on
account for the participants of the Siebe North 401(k) Plans,
together with earnings attributable to such accounts between
the Closing and the date of transfer.
(3) Norcross will be free to modify, amend, or terminate the Siebe North
401(k) Plans after the Closing as it chooses, but only if -
(a) Such modifications or amendments are in accordance with
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Appendix I
the terms of the Siebe North 401(k) Plans as in effect from
time to time and in accordance with law, including ERISA;
(b) Such modifications or amendments continue to give Continuing
Employees credit for participation and benefit accrual purposes
for their prior service with Siebe North or its affiliated
companies and/or predecessors as provided in the Siebe North
401(k) Plans; and
(c) Norcross indemnifies the Siebe Sellers and holds the Siebe
Sellers harmless from and against any and all liabilities,
damages, claims, losses, costs, and expenses (including
attorneys' fees) arising solely out of or resulting from any
such modification, amendment, or termination.
C. BENEFITS RESTORATION PLAN
(1) Siebe North will remain the sponsor of the Siebe North Inc. Benefit
Restoration Plan (the "Siebe North SERP").
(2) Norcross will be free to modify, amend, or terminate the Siebe North
SERP after the Closing as it chooses, but only if -
(a) Such modifications or amendments are in accordance with the
terms of the Siebe North SERP as in effect from time to time
and in accordance with law, including ERISA;
(b) Such modifications or amendments continue to give Continuing
Employees credit for participation and benefit accrual purposes
for their prior service with Siebe North or its affiliated
companies and/or predecessors as provided in the Siebe North
SERP; and
(c) Norcross indemnifies the Siebe Sellers and holds the Siebe
Sellers harmless from and against any and all liabilities,
damages, claims, losses, costs, and expenses (including
attorneys' fees) arising solely out of or resulting from any
such modification, amendment, or termination.
D. DEFERRED COMPENSATION PLAN
(1) The Siebe Group of companies in the United States, including Siebe
North, currently maintain the Siebe plc Deferred Compensation Plan
(the "Siebe Deferred Compensation Plan").
(2) The following Continuing Employees (the "North Safety Deferred
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Appendix I
Compensation Participants") participate in the Siebe Deferred
Compensation Plan:
J. Keitt Hane
Wallace Reed
Paul Dittmer
(3) From and after the Closing, Siebe-North will assume, honor and perform
the sponsor/employer obligations to the North Safety Deferred
Compensation Participants under the Siebe Deferred Compensation Plan.
(4) As soon as practicable after the Closing, Norcross will cause Siebe
North -
(a) To adopt a deferred compensation plan (the "Norcross Deferred
Compensation Plan") which, by its terms -
(i) Is the successor plan to the Siebe Deferred
Compensation Plan with respect to such Continuing
Employees;
(ii) Is substantially similar to the Siebe Deferred
Compensation Plan; and
(iii) Permits such North Safety Deferred Compensation
Participants to participate in the Norcross Deferred
Compensation Plan and to continue to defer all
"Deferred Amounts" (as defined in the Siebe Deferred
Compensation Plan).
(5) The Siebe Sellers will cause a portion of the assets held in the Trust
Under Siebe plc Deferred Compensation Plan (the "Master Deferred
Compensation Trust") for the benefit of the North Safety Deferred
Compensation Plan participants to be transferred to a new trust (the
"Norcross Deferred Compensation Trust") as follows:
(a) Norcross will establish the Norcross Deferred Compensation
Trust as soon as practicable after the Closing.
(b) The Siebe Sellers will cause the trustee of the Master Deferred
Compensation Trust to calculate the fair market value as of the
Closing, in a manner consistent with the trustee's past
practice, that portion of the assets of the Master Deferred
Compensation Trust that are held on account for the Continuing
Employees who are participants
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Appendix I
in the Siebe Deferred Compensation Plan.
(c) As soon as practicable after the trustee of the Master Deferred
Compensation Trust has completed the valuation described in
paragraph 5(D)(5)(b) above, the trustee of the Master Deferred
Compensation Trust will transfer to the trustee of the Norcross
Deferred Compensation Trust an amount (in cash or other
property as Norcross and the Siebe Sellers may agree) equal to
the amount held on account for the Continuing Employees who are
participants in the Siebe Deferred Compensation Plan, together
with earnings attributable to such accounts between the Closing
and the date of transfer.
E. WELFARE PLANS
(1) Siebe North currently sponsors the following welfare plans (the "North
Safety Welfare Plans") for the benefit of the Continuing Employees:
(a) The Siebe North, Inc. Benefit Plan (flexible spending
accounts),
(b) The Siebe North, Inc. Employees Health Plan (medical, dental
and prescription drugs),
(c) The Siebe North, Inc. Plan (which includes life insurance,
long-term disability insurance, and accidental death and
dismemberment insurance),
(d) The Siebe North Business Travel Accident Plan (which includes
life insurance and long term disability),
(e) The Siebe North, Inc., Disability Leave of Absence Policy, and
(f) The Siebe North, Inc., Salary Continuation Plan for Absence Due
to Sickness or Accident (Exempt Salaried Personnel).
(2) The Siebe North Welfare Plans will continue in effect at and
immediately after the Closing and Siebe North will continue to be the
sponsor of such plans.
(3) The Siebe Sellers currently have no duties or obligations with respect
to the Siebe North Welfare Plans and will have no duties or
obligations with respect to the Siebe North Welfare Plans after the
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Appendix I
Closing.
(4) Norcross will be free to modify, amend, or terminate any or all of the
Siebe North Welfare Plans after the Closing as it chooses, but only if
-
(a) Such modifications or amendments are in accordance with the
terms of the Siebe North Welfare Plan affected as in effect
from time to time and in accordance with law, including ERISA;
(b) Such modifications or amendments continue to give Continuing
Employees credit for participation purposes for their prior
service with Siebe North or its affiliated companies and/or
predecessors as provided in the Siebe North Welfare Plans; and
(c) Norcross indemnifies the Siebe Sellers and holds the Siebe
Sellers harmless from and against any and all liabilities,
damages, claims, losses, costs, and expenses (including
attorneys' fees) arising solely out of or resulting from any
such modification, amendment, or termination.
F. WELFARE POLICIES
(1) Siebe North has adopted the following employee welfare policies
(collectively, the "Siebe North Welfare Policies") applicable to the
Continuing Employees:
(a) Vacation benefit and holiday policy;
(b) Bereavement leave policy;
(c) Jury-pay make up policy;
(d) Paid sick leave policy; and
(e) Siebe North, Inc. Tuition Assistance policy.
(2) The Siebe North Welfare Policies will continue in effect at and
immediately after the Closing.
(3) Norcross will be free to modify, amend, or terminate any or all of the
Siebe North Welfare Policies after the Closing as it chooses, but only
if -
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Appendix I
(a) Such modifications or amendments are in accordance with the
terms of the affected Siebe North Welfare policy as in effect
from time to time and in accordance with law, including ERISA;
(b) Such modifications or amendments continue to give Continuing
Employees credit for participation purposes for their prior
service with Siebe North or its affiliated companies and/or
predecessors as provided in the affected Siebe North Welfare
policy; and
(c) Norcross indemnifies the Siebe Sellers and holds the Siebe
Sellers harmless from and against any and all liabilities,
damages, claims, losses, costs, and expenses (including
attorneys' fees) arising solely out of or resulting from any
such modification, amendment, or termination.
G. SEVERANCE POLICY
(1) Siebe North adopted a written severance policy on June 1, 1998,
entitled Separation Pay Policy (the "Siebe North Severance Policy").
(2) The Siebe North Severance Policy will continue in effect after the
Closing for a period of at least one year; provided that such policy
shall remain in effect indefinitely with respect to the Continuing
Employees listed in paragraph 5(G)(3) below.
(3) If the employment of any of the following Continuing Employees with
Siebe North is terminated involuntarily without cause at any time
after the Closing, then Norcross will cause Siebe North to assure that
such terminated employees' severance benefit under the Siebe North
Severance Policy is equal to no less than the number of months' pay
(at the terminated employees' base salary pay rate the time of such
termination) as indicated below:
<Table>
<Caption>
Continuing Employee Minimum No. of Months
------------------- ---------------------
K. W. Smith Six
T. Hudson Six
P. J. Stupinski Six
W. L. Reed Six
P. Dittmer Six
P. Fredericks Six
</Table>
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Appendix I
<Table>
<Caption>
Continuing Employee Minimum No. of Months
------------------- ---------------------
R. Stokker Six
T. Kulp Six
S. T. Nakagama Six
</Table>
In addition, Norcross will cause Siebe North to provide such
Continuing Employees with continued medical coverage and (in the case
of Messrs. Smith, Hudson, Stupinski, Reed, and Nakagama) a vehicle
allowance as currently in effect for the duration of the periods
indicated above.
(4) Norcross will be free after the first anniversary of the Closing to
modify, amend, or terminate the Siebe North Severance Plan as it
chooses, but only if -
(a) Such modifications or amendments are in accordance with the
terms of the Siebe North Severance Plan as in effect from time
to time and in accordance with law, including ERISA;
(b) Such modifications or amendments continue to give Continuing
Employees credit for participation and benefit accrual purposes
for their prior service with Siebe North or its affiliated
companies and/or predecessors as provided in the Siebe North
Severance Plan;
(c) Norcross indemnifies the Siebe Sellers and holds the Siebe
Sellers harmless from and against any and all liabilities,
damages, claims, losses, costs, and expenses (including
attorneys' fees) arising solely out of or resulting from any
such modification, amendment, or termination; and
(d) Before implementing any such modification, amendment, or
termination, Norcross provides the Continuing Employees listed
in paragraph 5(G)(3) above severance benefits which are no less
favorable than the benefits that would have been provided such
Continuing Employees under such paragraph.
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