Exhibit 10.3


 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


JOINT VENTURE AGREEMENT


 


	
  Force Protection Advanced Solutions Limited

  	
   

  	
  (1

  	
  )

  
	
  Force Protection Industries, Inc.

  	
   

  	
  (2

  	
  )

  
	
  NP Aerospace Limited

  	
   

  	
  (3

  	
  )

  
	
  Integrated Survivability Technologies Limited

  	
   

  	
  (4

  	
  )

  



 

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  INTERPRETATION

  	
  1

  
	
  2.

  	
  THE BUSINESS OF IST

  	
  7

  
	
  3.

  	
  TERM

  	
  11

  
	
  4.

  	
  COMPLETION

  	
  11

  
	
  5.

  	
  COVENANTS

  	
  16

  
	
  6.

  	
  DIRECTORS AND MANAGEMENT

  	
  18

  
	
  7.

  	
  RESTRICTIONS ON THE
  PARTIES

  	
  22

  
	
  8.

  	
  GUARANTEES AND INDEMNITIES

  	
  23

  
	
  9.

  	
  THE BUSINESS PLAN

  	
  29

  
	
  10.

  	
  FINANCING OF IST

  	
  30

  
	
  11.

  	
  ACCOUNTING

  	
  30

  
	
  12.

  	
  DEADLOCK

  	
  31

  
	
  13.

  	
  RESOLUTION OF DEADLOCK

  	
  32

  
	
  14.

  	
  TRANSFER OF SHARES

  	
  35

  
	
  15.

  	
  OBLIGATORY TRANSFER EVENT

  	
  35

  
	
  16.

  	
  TRANSFER FOLLOWING
  OBLIGATORY TRANSFER EVENT

  	
  36

  
	
  17.

  	
  EXPERT

  	
  38

  
	
  18.

  	
  TERMINATION AND
  LIQUIDATION

  	
  39

  
	
  19.

  	
  COMPLETION OF THE SALE AND
  PURCHASE OF SHARES IN IST

  	
  41

  
	
  20.

  	
  STATUS OF AGREEMENT

  	
  42

  
	
  21.

  	
  INTELLECTUAL PROPERTY
  RIGHTS

  	
  43

  
	
  22.

  	
  CONFIDENTIALITY

  	
  43

  
	
  23.

  	
  PUBLICITY

  	
  45

  
	
  24.

  	
  DATA PROTECTION

  	
  46

  
	
  25.

  	
  FREEDOM OF INFORMATION

  	
  46

  
	
  26.

  	
  WARRANTY

  	
  46

  
	
  27.

  	
  WHOLE AGREEMENT

  	
  46

  



 

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  28.

  	
  ASSIGNMENTS

  	
  46

  
	
  29.

  	
  VARIATION AND WAIVER

  	
  47

  
	
  30.

  	
  COSTS

  	
  47

  
	
  31.

  	
  NO PARTNERSHIP

  	
  47

  
	
  32.

  	
  THIRD PARTY RIGHTS

  	
  47

  
	
  33.

  	
  NOTICE

  	
  48

  
	
  34.

  	
  INTEREST ON LATE PAYMENT

  	
  49

  
	
  35.

  	
  SEVERANCE

  	
  50

  
	
  36.

  	
  FURTHER ASSURANCE

  	
  50

  
	
  37.

  	
  COUNTERPARTS

  	
  50

  
	
  38.

  	
  AGREEMENT SURVIVES
  COMPLETION

  	
  50

  
	
  39.

  	
  GOVERNING LAW AND
  JURISDICTION

  	
  51

  
	
  Schedule 1 - Matters reserved for shareholder approval

  	
  51

  
	
  Schedule 2 - Covenants

  	
  55

  
	
  Schedule 3

  	
  56

  



 


ii

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


THIS AGREEMENT is dated 31 March 2009


 


PARTIES


 


(1)                                  FORCE
PROTECTION ADVANCED SOLUTIONS LIMITED, a company incorporated and registered in
England and Wales with company number 06681502 whose registered office is at
Narrow Quay House, Narrow Quay, Bristol, BS1 4AH (FPAS).


 


(2)                                  FORCE
PROTECTION INDUSTRIES, INC., a company incorporated in the State of Nevada in
the United States of America with employee identification number (EIN)
88-0361514 with a principal place of business at 9801 Highway 78, Ladson, South
Carolina 29456 and whose registered agent is Corporation Service Company, 1703
Laurel Street, Columbia, South Carolina 29201 (FPII).


 


(3)                                  NP AEROSPACE
LIMITED, a company incorporated and registered in England and Wales with
company number 3472480 whose registered office is at 473 Foleshill Road,
Coventry, West Midlands, CV6 5AQ (NPA).


 


(4)                                  INTEGRATED
SURVIVABILITY TECHNOLOGIES LIMITED a company incorporated and registered in
England and Wales with company number 06805545 whose registered office is at
Narrow Quay House, Narrow Quay, Bristol, BS1 4AH (IST).


 


Each a “party” and
references to “parties” are
references to all of them.


 


BACKGROUND


 


(A)                              FPAS and NPA
are to each hold shares in IST (as defined below).


 


(B)                                IST shall carry
on business in accordance with the terms and conditions of this Agreement.


 


(C)                                FPAS and NPA
shall exercise their rights in relation to IST in accordance with the terms and
conditions of this Agreement.


 





















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


AGREED TERMS


 


1.                                      INTERPRETATION


 


1.1                                 The definitions
and rules of interpretation in this Clause apply in this Agreement.


 


Approvals
Matrix: the approvals matrix of the Company in the agreed
form;


 


Articles: the articles of
association of IST in the agreed form to be adopted on or prior to Completion
as amended or superseded from time to time;


 


Base
Vehicle: means a vehicle comprised of those parts of a
Relevant Vehicle which are not supplied by an NPA Group Company;


 


Board: the board of
directors of IST as constituted from time to time;


 


Business: has the meaning
given in Clause 2;


 


Business
Day: a day (other than a Saturday or Sunday) when banks in the City of
London are open for business;


 


Business
Plan: has the meaning given in Clause 9;


 


Chairman: means the
chairman of IST;


 


Companies
Acts: the Companies Act 1985 and the Companies Act 2006;


 


Completion:
the performance of all the obligations of the parties to this Agreement
set out in Clause 4;


 


Completion
Date: means the date of this Agreement;


 


Confidential
Information: has the meaning given in Clause 22;


 


Control: in relation to
a body corporate, means the power of a person to secure that the affairs of the
body corporate are conducted in accordance with the wishes of that person:


 


(a)                                  by means of the
holding of shares, or the possession of voting power, in or in relation to that
or any other body corporate; or


 


(b)                                 by virtue of
any powers conferred by the articles of association, or any other document,
regulating that or any other body corporate,


 


2

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


and a Change of Control occurs if a person who
controls any body corporate ceases to do so or if another person acquires
control of it, but, for the avoidance of doubt, provided that:


 


(i)                                     in the case of
NPA, Morgan Crucible remains the ultimate parent company of NPA; or


 


(ii)                                  in the case of
FPAS, FPI remains the ultimate parent company of FPAS,


 


there will not be a Change
of Control;


 


Covenants: means the
covenants set out in Schedule 2;


 


Deadlock
Notice: has the meaning given in Clause 12.3;


 


Deadlock
Resolution Notice: has the meaning given in Clause 13.1;


 


DoD: means the
United States Department of Defense;


 


Effective
Date: means the date of this Agreement;


 


Equity
Shares: means the FPAS Shares and the NPA Shares;


 


Encumbrance:
includes any mortgage, charge (fixed or floating), pledge, lien,
hypothecation, guarantee, trust, right of set-off or other third party right or
interest (legal or equitable) including any assignment by way of security,
reservation of title or other security interest of any kind, howsoever created
or arising, or any other agreement or arrangement (including a sale and
repurchase agreement) having similar effect;


 


Existing
FPI FMS Contracts: the contracts entered into by any FP Group Company
prior to the date of this Agreement for the supply of vehicles to UK MOD
through the DOD’s foreign military sales structure;


 


Existing
NPA Spares Contract: the contract dated 1 April 2008 between
NPA and UK MOD;


 


Expert: a person
appointed in accordance with Clause 17 to resolve a matter under this
Agreement;


 


3

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


Fair Value:
means the value of any shares determined in accordance with Clause 16;


 


FD: means the
finance director of IST;


 


Financial
Year: in relation to IST, means a financial accounting period of 12 months
ending on the date given in Clause 4.2(f) but, in the first year in which
IST is formed, means the period starting with the day IST is formed and ending
on the date given in Clause 4.2(f);


 


FPAS
Director: any director appointed to the Board by FPAS;


 


FPII IPR: all
Intellectual Property Rights identified in the relevant FPII Sub-contract and
owned by or licensed to FPII;


 


FPAS Share:
an ordinary share of £1 in the capital of IST designated as an FPAS
Share;


 


FPI: Force
Protection, Inc., a company incorporated in the State of Nevada in the
United States of America with employee identification number (EIN) 84-1383888
with a principal place of business at 9801 Highway 78, Ladson, South Carolina
29456 and whose registered agent is Corporation Service Company, 1703 Laurel
Street, Columbia, South Carolina 29201;


 


FPII
Sub-contract: any sub-contract between FPII and IST for the supply
by FPII of Relevant Vehicles and/or Other Vehicles and Products;


 


FP Group
Company: FPI and any member of its Group;


 


Group: in relation to
a company (wherever incorporated), that company, any company of which it is a
Subsidiary (its holding company) and any other Subsidiaries of any such holding
company; and each company in a Group is a member of the Group. Unless the
context otherwise requires, the application of the definition of Group to any
company at any time shall apply to the company as it is at that time;


 


Intellectual
Property Rights means all intellectual property rights and includes
copyrights, patents, trade marks, service marks, database rights and rights to
extract data, registered and unregistered designs, rights in circuit layouts
and semi-conductor topography rights, trade secrets, rights of confidence, all
whether registered or not, 


 


4

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


applications for any of the
foregoing, the right to apply for any of the foregoing and all other intellectual
property rights and equivalent or similar rights or forms of protection
recognised in any part of the world;


 


Material
Contract: means a contract having a contract value in excess
of £[***];


 


MD: means the
managing director of IST;


 


Morgan
Crucible: The Morgan Crucible Company PLC, a company
incorporated and registered in England and Wales with company number 00286773
whose registered office is at Quadrant, 55-57 High Street, Windsor, Berkshire
SL4 1LP;


 


NPA
Director: any director appointed to the Board by NPA;


 


NPA Group
Company: NPA and any member of its Group;


 


NPA IPR means all
Intellectual Property Rights identified in the relevant NPA Sub-Contract and
owned by or licensed to NPA;


 


NPA Share: an ordinary
share of £1 in the capital of IST designated as a NPA Share;


 


NPA
Sub-contract: any sub-contract between NPA and IST for the
integration of equipment onto the Relevant Vehicles and Other Vehicles and
Products and any other services to be provided by NPA to IST;


 


Obligatory
Transfer Event: in relation to a party, any event specified in
Clause 15 that happens to that party or any member of its Group;


 


Other
Vehicles and Products: has the meaning given in Clause 2.1;


 


Relevant
Vehicles: has the meaning given in Clause 2.1;


 


Reserved
Matters: the matters listed in Schedule 1;


 


Shareholders:
the holders of Equity Shares;


 


Subsidiary: in relation to
a company wherever incorporated (a holding company) means a “subsidiary” as
defined in section 1159 of the Companies Act 2006 and any other 


 


5

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


company which is a
subsidiary (as so defined) of a company which is itself a subsidiary of such
holding company. Unless the context otherwise requires, the application of the
definition of Subsidiary to any company at any time shall apply to the company
as it is at that time;


 


Taxes Act
1988: the Income and Corporation Taxes Act 1988;


 


Term: the term of
the agreement as set out in Clause 3;


 


UK MOD: means the
United Kingdom Ministry of Defence;


 


UK MOD
Contract: any contract between IST and UK MOD in the terms
entered into prior to termination of this Agreement;


 


US: United States
of America;


 


1.2                                 Clause,
Schedule and paragraph headings do not affect the interpretation of this
Agreement.


 


1.3                                 A reference to
a Clause or a Schedule is a reference to a Clause of, or Schedule to, this

Agreement. A reference to a paragraph is to a paragraph of the relevant
Schedule.


 


1.4                                 A person includes a natural person, a
corporate or unincorporated body (whether or not having a separate legal
personality).


 


1.5                                 Words in the
singular include the plural and in the plural include the singular.


 


1.6                                 A reference to
one gender includes a reference to the other gender.


 


1.7                                 A reference to
a particular statute, statutory provision or subordinate legislation is a
reference to it as it is in force at the date of this Agreement taking account
of any amendment or re-enactment and includes any statute, statutory provision
or subordinate legislation which it amends or re-enacts and subordinate
legislation for the time being in force made under it provided that, as between
the parties, no such amendment or re-enactment shall apply for the purposes of
this Agreement to the extent that it would impose any new or extended
obligation, liability or restriction on, or otherwise adversely affect the
rights of, any party.


 


6

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


1.8                                 A reference to writing or written includes faxes but not e-mail.


 


1.9                                 Documents in agreed form are the documents listed in
Schedule 3 in the form agreed by the parties to this Agreement and initialled
by them or on their behalf for identification.


 


1.10                           A reference in
this Agreement to a document is a reference to the document whether in paper or
electronic form.


 


1.11                           Where the words
include(s), including or in particular are used in this Agreement,
they are deemed to have the words “without limitation” following them.


 


1.12                           Any obligation
in this Agreement on a person not to do something includes an obligation not to
agree or allow that thing to be done.


 


1.13                           Where the
context permits, other and otherwise are illustrative and shall not
limit the sense of the words preceding them.


 


2.                                      THE BUSINESS OF IST


 


2.1                                 The business of
IST (the Business) is:


 


(a)                                  the design,
development, manufacture, forward-integration and delivery, with IST acting as
the contracting entity on a prime contractor basis, of:


 


(i)                                     FPII’s
Wolfhound, Buffalo, Mastiff and Ridgback vehicles as at the date of this
Agreement and vehicles which are based on those vehicles (Relevant Vehicles) to the UK MOD;


 


(ii)                                  other
innovative, fully-integrated vehicles and other products to be agreed by the
Shareholders in writing (Other Vehicles and
Products);


 


(b)                                 the provision
of whole life support (including spares, field service repairs and product
upgrades) to UK MOD in relation to the Relevant Vehicles;


 


(c)                                  working with UK
MOD to establish the optimum contractual structures and working relationships
including:


 


(i)                                     the use of UK
sub-contractors, where appropriate;


 


7
















 


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


(ii)           forming a long-term partnering relationship with UK
MOD;


 


(iii)          continually seeking to develop design enhancements
that create real value for UK MOD and working with FPII, NPA and other
sub-contractors to incorporate such enhancements within the scope of work of
each sub-contract;


 


(iv)          finding innovative and flexible solutions for UK MOD
such as availability-based procurement, integrated product delivery and
through-life support packages and priced options; and


 


(v)           engendering a culture of openness and transparency
as demonstrated by open-book accounting and raising problems at an early stage
when they can be resolved effectively,


 


all of which should enable IST to provide UK MOD
with a value for money through-life solution on time and on budget; and


 


(d)           entering into sub-contracts with FPII, NPA and third
parties for the supply of goods and services to enable IST to perform its
obligations.


 


2.2           IST and each of the Shareholders agree as follows:


 


(a)           Each Shareholder shall use its reasonable endeavours
to promote and develop the business of IST to the best advantage of IST;


 


(b)           IST and the Shareholders shall use their reasonable
endeavours to ensure that:


 


(i)            the formation and operation of IST adds value to
both of the Shareholders; and


 


(ii)           IST becomes a viable and profitable company.


 


2.3           IST shall have places of business in both Bristol
and Coventry, or in such other places as may be agreed by the parties from time
to time.


 


8

















 


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


Non-IST Supply


 


2.4           Subject to Clause 2.17, no FP Group Company shall
supply Relevant Vehicles to UK MOD otherwise than through IST.


 


2.5           Subject to Clause 2.17, IST shall sub-contract with
NPA for all integration work in relation to Relevant Vehicles it supplies to UK
MOD, except in such cases where all FPAS Directors and all NPA Directors
unanimously resolve that:


 


(a)           NPA does not have the necessary expertise, capacity
or resources to fulfil the relevant requirement; or


 


(b)           it is in the best interests of IST to contract with
a party other than NPA,


 


in which case IST shall be entitled to contract with
a sub-contractor or supplier other than NPA. Where reasonably possible, IST
shall contract with an entity based in the United Kingdom.


 


2.6           IST, FPII, FPAS and NPA will work to develop a
contractual structure and specifications which maximise efficiency and avoid
redundant activities and duplication of effort between contractors.


 


2.7           The parties acknowledge that UK MOD may decide to
procure Relevant Vehicles otherwise than through IST. In such circumstances,
FPII shall be entitled to supply the Relevant Vehicles to UK MOD directly or
through an entity nominated by the DoD and such supply shall not be though IST.
FPII shall not be required to account to IST for any revenue generated by that
contract. For the avoidance of doubt, FPII may complete its Existing FPI FMS
Contracts.


 


2.8           Where UK MOD purchases the Relevant Vehicles
otherwise than through IST and awards any integration work to NPA, NPA will be
entitled to perform such contract directly and shall not be required to account
to IST for any revenue generated by that contract.


 


2.9           Where UK MOD purchases Relevant Vehicles otherwise
than through IST, the parties anticipate that IST will only be party to a
contract with UK MOD if UK MOD elects to engage IST to co-ordinate integration
or through-life support.


 


9

















 


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


2.10         FPAS and FPII will use reasonable endeavours to
assist IST in obtaining integration work in relation to any Relevant Vehicles
supplied to UK MOD otherwise than through IST.


 


2.11         Subject to NPA’s rights pursuant to Clauses 2.12 to
2.15 below, all companies in the NPA Group will use reasonable endeavours to
assist IST in supplying Relevant Vehicles to UK MOD.


 


Whole life support


 


2.12         Subject to Clause 2.17, FPII and NPA (and members of
their Groups) shall not bid for whole-life support (including spares,
enhancements and modifications) work in relation to Relevant Vehicles for UK
MOD other than through IST, except with the consent of the other Shareholder,
not to be unreasonably withheld or delayed, provided that NPA may continue to
provide spares to UK MOD under the Existing NPA Spares Contract.


 


Competitive Bids


 


2.13         Subject to Clause 2.17, where FPII is competing to
supply a Relevant Vehicle otherwise than through IST to UK MOD then:


 


(a)           NPA shall not form part of, or provide sub-contract
services to, a competing bidding group or consortium, save that


 


(b)           NPA may act as a sub-contractor to a competing
bidding group or consortium on no better terms than those offered to IST,
PROVIDED THAT, NPA commits no less resources to any IST proposal to provide
integration services in respect of that Relevant Vehicle than the resources it
provides to any competing bidding group or consortium.


 


2.14         Subject to Clause 2.17, where in respect of a
requirement published by UK MOD:


 


(a)           FPII does not notify NPA within 30 days of a request
by NPA that an FP Group Company will bid to supply a Relevant Vehicle to UK MOD
otherwise than through IST; or


 


(b)           MOD has directed that the vehicle to be supplied
should not be a Relevant Vehicle (either by reason of choosing sole source
procurement or excluding the 


 


10

















 


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


Relevant Vehicle from the competition at any time) (whether when
inviting tenders or following completion of the competition); and


 


(c)           only where and from such time as one or both of the
circumstances in subparagraphs (a) or (h) has occurred,


 


then any NPA Group Company may form part of a
competing bidding group or consortium (either as shareholder or sub-contractor)
using a platform which is not a Base Vehicle.


 


2.15         Subject to Clause 2.17, where IST or an FP Group
Company has entered but has failed to win any competition to supply any
Relevant Vehicle to UK MOD, NPA may supply any goods and/or services to the
successful bidding group or consortium except those goods and services which uniquely
relate to any Relevant Vehicle.


 


2.16         Each of FPII and NPA shall procure that the members
of their respective Groups comply with the provisions of this Agreement


 


No restriction on UK MOD


 


2.17         Nothing in this Agreement (including but not limited
to Clauses 2.4, 2.5 and 2.12 to 2.15) shall prevent any FP Group Company or any
NPA Group Company from:


 


(a)           supplying any goods or services to UK MOD; or


 


(b)           competing to supply any goods or services to UK MOD,


 


otherwise than through IST, whether directly or
through a consortium arrangement, joint venture or other entity or structure,
if so required by UK MOD.


 


UK MOD as priority customer


 


2.18         Each of the Parties agrees that:


 


(a)           UK MOD will be the highest priority customer for
IST; and


 


(b)           where IST receives orders from UK MOD and other
customers to perform work and IST would be unable to satisfy all such orders,
IST shall give priority to UK MOD’s orders,


 


11

















 


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


provided that this priority shall not require IST to
breach any existing contractual arrangements.


 


3.             TERM


 


3.1           This Agreement shall come into effect on the
Effective Date and shall continue in force unless and until terminated in
accordance with its terms.


 


4.             COMPLETION


 


4.1           Completion shall take place on the Completion Date
at:


 


(a)           the offices of DLA Piper UK. LLP at Victoria Square
House, Victoria Square, Birmingham B2 4DL; or


 


(b)           any other place agreed in writing by the parties.


 


4.2           At Completion the parties shall procure that such
shareholder and board meetings of IST are held as may be necessary to:


 


(a)           increase the authorised share capital of IST to
£1,000,000, divided into 1,000,000 ordinary shares of £1 each and re-designate
the shares held in IST by FPAS as FPAS Shares and shares held in it by NPA as
NPA Shares, in each case to be subscribed for in accordance with Clauses 4.3
and 4.4;


 


(b)           appoint:


 


(i)            Michael Moody as FPAS Director and Chairman


 


(ii)           David Hind as FPAS Director;


 


(iii)          Lenna Macdonald as FPAS Director;


 


(iv)          Michael Linton as NPA Director and MD;


 


(v)           Roger Medwell as NPA Director; and


 


(vi)          Andrew Riley as NPA Director;


 


(c)           resolve that the registered office of IST shall be
at Bristol Business Park, 330 Coldharbour Lane, Bristol BS16 1EJ;


 


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HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2
PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


(d)           appoint Grant Thornton UK LLP as the auditors of IST
(Auditors);


 


(e)           appoint Barclays Bank plc as the principal bankers
to IST; and


 


(f)            resolve that IST’s financial year shall end on 31 December in
each year.


 


4.3           At Completion:


 


(a)           FPAS and NPA shall procure that IST shall issue
credited as fully paid 299,999 FPAS Shares to FPAS and enter FPAS in the
register of members of IST as the holder of such FPAS Shares and issue a share certificate
to FPAS in respect of all such shares;


 


(b)           in consideration for the issue of FPAS Shares, FPAS
shall pay £1,499,995 by telegraphic transfer to IST; and


 


(c)           FPAS and NPA shall procure that IST shall issue
credited as fully paid 300,000 NPA Shares to NPA and enter NPA in the register
of members of IST as the holder of such NPA Shares and issue a share
certificate to NPA in respect of all such shares; and


 


(d)           in consideration for the issue of NPA Shares, NPA
shall pay £1,499,995 by telegraphic transfer to IST.


 


4.4           Further subscription for shares:


 


(a)           Subject to the terms of this Agreement:


 


(i)            FPAS shall apply for the allotment and issue to it
of 200,000 additional Equity Shares on 6 July 2009, such shares to be
designated as FPAS Shares;


 


(ii)           NPA shall apply for the allotment and issue to it of
200,000 additional Equity Shares on 6 July 2009, such shares to be
designated as NPA Shares,


 


(the Further Subscription
Shares) in each case at a subscription price of £5 per Equity Share (the Share
Subscription Price).


 


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FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


(b)           IST shall accept such applications for Further
Subscription Shares.


 


(c)           Upon receipt of the aggregate Subscription Price for
the number of Further Subscription Shares subscribed for by and from each of
FPAS and NPA, IST shall issue the number of Further Subscription Shares
subscribed and paid for by each of FPAS and NPA fully paid and designated as
FPAS Shares and NPA Shares (as appropriate) and shall procure that their names
be entered in the register of members of IST as the respective holders of the
number of Further Subscription Shares so allotted and issued to them and shall
forthwith issue to each of them an appropriate definitive share certificate executed
by IST.


 


(d)           If the Subscription Price is not received from
either FPAS or NPA (the Defaulting Subscriber) on 6 July 2009 or such
later date as may be agreed by the Shareholders (the Subscription Date) IST
shall notify the Defaulting Subscriber that it is in default of its obligation
to subscribe for Further Subscription Shares and shall give the Defaulting
Subscriber notice (the Default Notice) that the Defaulting Subscriber must
subscribe in cleared funds for Further Subscription Shares within 10 Business
Days from the Subscription Date (the Long Stop Date). Failure by IST to give a
Default Notice in accordance with this Clause 4 shall not relieve the
Defaulting Subscriber from any obligation or liability arising under this
Clause 4.4 and shall not invalidate any action of IST taken pursuant to it.


 


(e)           If a Defaulting Subscriber has not subscribed in
cleared funds for Further Subscription Shares by the Long Stop Date, IST shall
notify whichever of FPAS or NPA is not the Defaulting Subscriber (the Non-Defaulting
Subscriber) of such failure within five Business Days of the Long Stop Date and
shall invite the Non-Defaulting Subscriber to subscribe for Further
Subscription Shares in respect of the Further Subscription Shares which are the
subject of the Default Notice (a Defaulted Shares Application) within 30
Business Days of the Long Stop Date.


 


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HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


(f)            A Non-Defaulting Subscriber shall have the right but
not the obligation to subscribe for the Further Subscription Shares which are
the subject of the Default Notice within 30 Business Days of the Long Stop
Date.


 


(g)           Upon receipt of the aggregate Subscription Price for
the number of Further Subscription Shares subscribed for by and from the
Non-Defaulting Subscriber, IST shall accept such Defaulted Shares Application
and issue the number of Further Subscription Shares subscribed and paid for by
the Non-Defaulting Subscriber fully paid and designated as either FPAS Shares
and NPA Shares (as appropriate) and shall procure that the name of the
Non-Defaulting Subscriber be entered in the register of members of IST as the
holder of the number of Further Subscription Shares so allotted and issued to
it and shall forthwith issue to it an appropriate definitive share certificate
by IST.


 


(h)           Notwithstanding any other provision of this
Agreement, in the event that FPAS or NPA is in default of its obligations under
this Clause 4.4 and does not subscribe in full in accordance with Clause 4.4 on
or before the Long Stop Date, the following shall apply:


 


(i)            the Reserved Matters referred to in Schedule 1 shall
be deemed to be limited to the following only and Clause 5 and Clause 6.6 shall
be qualified accordingly:


 


(A)          no shares shall be issued to any person (save
pursuant to employees or officers pursuant to a share incentive scheme approved
by the Board) other than on a pre-emptive basis in accordance with the
Articles;


 


(B)           any contract to be entered into between IST and any
FP Group Company or NPA Group Company shall be on arm’s length terms;


 


(C)           no alteration shall be made to the rights attaching
to any class of Equity Shares which does not apply to all classes of Equity
Shares;


 


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FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


(ii)           the restrictions in Clause 2 shall not apply to the
Non-Defaulting Subscriber;


 


(iii)          the Non-Defaulting Subscriber shall be entitled to
remove the current Chairman and appoint a replacement.


 


(iv)          the requirement for the consent of any Director of
IST appointed by the Defaulting Shareholders pursuant to Clauses 2.5 and 6.8
shall not apply;


 


(v)           the Defaulting Subscriber shall be entitled to
appoint no more than one director to the Board in aggregate; and


 


(vi)          Clause 7.2 shall not apply.


 


4.5           At Completion FPAS and NPA shall procure that IST
shall adopt the Business Plan that has been prepared for the Financial Year and
which is in agreed form.


 


4.6           FPAS and NPA waive, or agree to procure the waiver
of, any rights or restrictions which may exist in the Articles or otherwise
which might prevent the allotment and issue of the FPAS Shares and NPA Shares
pursuant to Clause 4.3, Clause 4.4 and Schedule 1.


 


4.7           The Shareholders shall procure that:


 


(a)           the Auditors shall, at the expense of the Company, be
instructed to certify the amount of the profits for each accounting reference
period which are available for distribution by the Company at the same time as
they sign their report on the audited accounts of the Company for the
accounting reference period in question; and


 


(b)           (insofar as is lawful) [***]% of the amount of the Company’s profits available for
distribution in respect of each financial year during the term of this
agreement shall be distributed by the Company to the Shareholders by way of dividend
pro-rata to the proportion of issued Shares held by that Shareholder (subject
to the restriction that no payment of any dividend will reduce the balance of
the cash held at the Company’s bank to below £[***]
on the day of payment).


 


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FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


5.             COVENANTS


 


Reserved Matters


 


5.1           Each Shareholder covenants with the other
Shareholder to take such steps as it is reasonably able to take to procure that
IST does not, and each Shareholder will procure that each of its respective
appointed directors of IST shall not (so far as such directors are lawfully
able), transact any business that is the subject of a Reserved Matter without
the prior consent of all other Shareholders.


 


5.2           IST covenants with the Shareholders that it shall
not transact any business the subject of a Reserved Matter without the prior
consent of all Shareholders.


 


5.3           For the avoidance of doubt, where this Agreement
provides for the delegation of powers to IST or to any of the directors of IST,
such delegation and such powers remain subject to the provisions of Clause 5.1
and Clause 5.2.


 


5.4           For the avoidance of doubt, where this Agreement
provides certain rights to FPAS and NPA, unless otherwise stated, the exercise
of any such rights remain subject to the provisions of Clause 5.1 and Clause
5.2.


 


5.5           Where all FPAS Directors and all NPA Directors in
office unanimously approve a matter which would otherwise fall within paragraph
26, 27, 29, 31 and 34 of Schedule 1, the provisions of Clauses 5.1 and 5.2
shall not apply in respect of such matter.


 


Consents


 


5.6           Where any consent or approval of the Shareholders is
required or sought in respect of any provision of this Agreement the
Shareholders shall have a complete and unfettered discretion as to whether or
not to give the consent or approval and whether or not to impose any terms,
conditions or limitations on any such consent or approval.


 


5.7           No consent or approval to be given by the
Shareholders in this Agreement shall be valid unless given in writing or in
accordance with Clause 5.8.


 


5.8           Where the consent or approval of a Shareholder is
required under this Agreement, it shall not be valid unless:


 


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BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


(a)           in the case of
FPAS:


 


(i)            it is given by
a FPAS Director voting in favour of a resolution of the Board in respect of the
matter in question and evidenced by the signed minutes of the appropriate Board
meeting or a duly signed written directors’ resolution or some other document
in which the relevant matter is approved; or


 


(ii)           if a FPAS
Director declines to give a decision on the matter (which he is entitled to do
at his discretion), FPAS gives its consent or approval in writing.


 


(b)           in the case of
NPA it is given by all NPA Directors voting in favour of a resolution of the
Board in respect of the matter in question and evidenced by the signed minutes
of the appropriate Board meeting or a written directors’ resolution duly signed
by all such persons or some other document in which the relevant matter is
approved; or


 


5.9           IST shall
promptly supply to the Shareholders and/or the FPAS Directors and Chairman and
the NPA Directors and MD, as the case may be, all information and documents
necessary to enable them to give proper consideration to any matter on which
their consent or approval is sought.


 


5.10         Each
Shareholder covenants with the other Shareholders and IST in the terms of the
Covenants.


 


5.11         IST covenants
with each of the parties (save for itself) in the terms of the Covenants.


 


5.12         The Reserved
Matters and the Covenants shall bind the Shareholders and IST respectively
during such time as any Shareholder or their valid successors and assigns are
the registered holder or beneficial owner of any share capital in IST.


 


5.13         Each of the
Reserved Matters and Covenants shall be construed independently of each of the
others so that if one or more of them shall be held to be invalid as an
unreasonable


 


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PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


restraint
of trade or for any other reason whatsoever then the remaining Reserved Matters
and Covenants shall be valid to the extent that they are not held to be so
invalid.


 


6.             DIRECTORS AND MANAGEMENT


 


Directors
and the Board


 


6.1           IST shall be
managed by a board of six directors (the Board)
consisting of:


 


(a)           a Chairman
nominated by FPAS;


 


(b)           the MD
nominated by NPA.


 


(c)           two Directors
nominated by FPAS (of whom one may be the FD), ;


 


(d)           two additional
Directors nominated by NPA.


 


6.2           The terms of
appointment of all Directors (including any remuneration) must be approved by
all of the Shareholders.


 


6.3           The Board shall
delegate to the MID all necessary power and authority to undertake, conduct and
carry-on the day-to-day management and operations of IST. The MD shall report
to and take strategic direction from the Board.


 


6.4           The FD will
work closely with the MD as FPAS’s key contact for day-to-day operational
issues. The FD’s approval, not to be unreasonably withheld or delayed, shall be
required for all material financial transactions in accordance with the
Approvals Matrix agreed between FPAS and NPA from time to time.


 


6.5           The MD, FD and
other senior management roles identified in this Agreement shall be full-time
appointments and each party shall permit any relevant individual previously or
concurrently employed by it to devote 100% of his time to his role within IST
during the term of his employment or secondment to IST.


 


6.6           The Board has
responsibility for the supervision and management of IST and its business but
shall obtain the approval of the Shareholders in accordance with Clause 5.8
before taking any decision in relation to any Reserved Matter.


 


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BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


6.7           Subject to
Clause 6.1, each Shareholder may nominate a director, and remove a director
whom it nominated (in each case as a director) by giving notice to IST and the
other Shareholder. The appointment or removal takes effect on the date on which
the notice is received by IST or, if a later date is given in the notice, on
that date. Each Shareholder will consult with the other prior to any
appointment or removal of a director provided that no Shareholder may so remove
a director prior to the expiry of a contract relating to the provision of his
or her services in place with IST, without the consent of the other
Shareholders.


 


6.8           The Shareholder
removing a Director shall indemnify and keep indemnified IST against any claim
connected with the Director’s removal from office.


 


6.9           The MD and the
FD (or in the absence of either of such persons another director of IST
appointed by the appointer of such person) shall have responsibility for
considering whether any amendment, variation or extension of any Material
Contract (including without limitation the MOD Contract, the FP Subcontract and
the NPA Subcontract) shall require approval by the Board or the Shareholders.
In the event that such parties are unable to reach agreement within five
Business Days of commencing discussion of the same, such matter shall be
referred to the Board and shall require unanimous approval of all FPAS
Directors and NPA Directors in office to be effected and in the absence of such
agreement shall be a Reserved Matter (subject always to Clause 4.4(h)). In the
event that such amendment, variation or exclusion shall give rise to additional
contract value in excess of £[***],
such amendment, variation or extension shall require unanimous approval of all
FPAS Directors and NPA Directors in office to be effected and in the absence of
such agreement shall be a Reserved Matter (subject always to Clause 4.4(h)).


 


Board
meetings


 


6.10         The Board shall
meet at least once a quarter to be held at a location to be agreed.


 


6.11         A director may,
and at the request of a director or the company secretary shall, call a meeting
of directors at any time.


 


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OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


6.12         IST shall
ensure that at least seven days’ written notice of a meeting of directors is
given to all directors entitled to receive notice accompanied by:


 


(a)           an agenda
specifying in reasonable detail the matters to be raised at the meeting; and


 


(b)           copies of any
papers to be discussed at the meeting.


 


6.13         A shorter
period of notice of a meeting of directors may be given if at least one FPAS
Director and all NPA Directors agree in writing.


 


6.14         Matters not on
the agenda, or business conducted in relation to those matters, may not be
raised at a meeting of directors unless all the directors agree in writing.


 


6.15         The quorum at
any meeting of directors is:


 


(a)           for any
business that is the subject of a Reserved Matter, all directors or their
alternates; and


 


(b)           for any other
business, one FPAS Director (or his alternate) and one NPA Director (or his
alternate) (in each case provided one is in office).


 


6.16         Where a meeting
is adjourned under Clause 6.19, the quorum for the adjourned meeting shall be
any two directors.


 


6.17         No business
shall be conducted at any meeting of directors unless a quorum is present at
the beginning of the meeting and at the time when there is to be voting on any
business.


 


6.18         If the Chairman
for the time being is unable to attend any meeting of the Board the Shareholder
who appointed him shall be entitled to appoint another Director appointed by it
to act as Chairman at the meeting.


 


6.19         If a quorum is
not present within 30 minutes after the time specified for a directors’ meeting
in the notice of the meeting then it shall be adjourned for five (5) Business
Days at the same time and place.


 


6.20         A meeting of
directors shall be adjourned to another time or date at the request of all the
FPAS Directors or all the NPA Directors present at the meeting. No business may
be


 


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OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


conducted
at a meeting after such a request has been made. No more than one such
adjournment may be made in respect of a meeting.


 


6.21         Meetings of
directors shall make decisions by passing resolutions:


 


(a)           for any
business that is the subject of a Reserved Matter, if all Directors cast their
vote for it; and


 


(b)           for any other
business, if more votes are cast for it than against it provided that if an
equal number of votes are cast for and against the resolution, the Chairman
shall use his best efforts to reconcile the different opinions of the
directors. If he is unsuccessful, the matter shall be decided by use of the
Chairman’s additional vote, to be exercised at his discretion.


 


6.22         Except as
provided by Clauses 6.21 and 6.24, at a meeting of directors, each director has
one vote.


 


6.23         An FPAS
Director or a NPA Director absent from a meeting may appoint any person (except
an existing director representing the other class of shares) to act as his
alternate at the meeting. For the purposes of the meeting the alternate
director:


 


(a)           shall be the
FPAS Director or NPA Director by whom he is appointed and may vote in place of
the FPAS Director or NPA Director; and


 


(b)           where the
person appointed as an alternate is already a director of IST in his own right,
shall also be a director (and may vote) in his own right.


 


6.24         If each of the
Shareholders is not represented at any meeting of the Board by the maximum
number of FPAS Directors and NPA Directors which such Shareholder is entitled
to appoint (whether present in person or by alternate), then one of the
directors so nominated by the Shareholder which is represented by fewer
directors shall be entitled at that meeting to such additional vote or votes as
shall result in the directors so present representing each Shareholder having
in aggregate the number of votes which could have been exercised by such
maximum number of directors.


 


6.25         The directors
participate in a directors’ meeting, or part of a director’s meeting, when:


 


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PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


(a)           the meeting has
been called and takes place in accordance with this Agreement; and


 


(b)           they can each
communicate to the others any information or opinions they have on any
particular item of the business of the meeting.


 


6.26         In determining
whether directors are participating in a directors’ meeting, it is irrelevant
where any director is or how they communicate with each other.


 


6.27         If all the directors
participating in a meeting are not in the same place, they may decide that the
meeting is to be treated as taking place wherever any of them is.


 


Organisational
matters


 


6.28         The parties
agree that it is essential that IST has a high-calibre, dedicated management
team (the Management Team) which
understands the FPAS and NPA cultures (as well as the culture of UK MOD) and is
focused on building up IST into a substantial company within the UK and
international defence manufacturing sector.


 


6.29         Where FPAS and
NPA transfer personnel to IST, they will ensure that such personnel are
replaced in their previous roles within FPAS and NPA so as to enable them to be
fully committed to IST. FPAS and NPA will ensure that the establishment and
management of IST does not result in disruption to existing contractual
obligations to the UK MOD.


 


6.30         Subject to
Clause 5 and Schedule 1, senior management shall be recruited by the MD and
David Hind (or any replacement or successor to David Hind, as nominated by
FPAS), who will work together in the recruitment process


 


6.31         The roles,
responsibilities and terms of employment of all senior management and the
organisational structure of IST must be approved by both Shareholders.


 


6.32         The
Shareholders agree that one senior manager of IST will be selected to ensure
compliance with all export control requirements, including but not limited to
technical assistance agreements, manufacturing licence agreements and any other
related compliance issues.


 


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BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


7.             RESTRICTIONS ON THE PARTIES


 


7.1           Each of the
Shareholders shall not, and each of the Shareholders shall procure that each
member of their respective Groups shall not, during the times specified in
Clause 7.4 below, offer employment to, enter into a contract for the services
of, or attempt to solicit or seek to entice away from IST any individual who is
at the time of, or in six month period prior to, the offer, or attempt, a
director, officer, secondee or employee holding an executive or managerial
position with IST or procure or facilitate the making of any such offer or
attempt by any other person.


 


7.2           NPA shall not,
and NPA shall procure that each NPA Group Company shall not, during the times
specified in Clause 7.4 below, offer employment to, enter into a contract for
the services of, or attempt to solicit or seek to entice away from FPAS or any
FP Group Company, any individual who is at the time of the offer, or attempt, a
director, officer or employee holding an executive or managerial position with
FPAS or any FP Group Company or procure or facilitate the making of any such
offer or attempt by any other person.


 


7.3           FPAS and FPII
shall not, and FPAS and FPII shall procure that each FP Group Company shall
not, during the times specified in Clause 7A below, offer employment to, enter
into a contract for the services of, or attempt to solicit or seek to entice
away from NPA or any NPA Group Company, any individual who is at the time of
the offer, or attempt, a director, officer or employee holding an executive or
managerial position with NPA or any NPA Group Company or procure or facilitate
the making of any such offer or attempt by any other person.


 


7.4           The times
during which the restrictions set out in this Clause 7 apply are:


 


(a)           any time when
the party in question is a Shareholder; and


 


(b)           for a period of
two years after the party in question ceases to be a Shareholder.


 


8.             GUARANTEES AND INDEMNITIES


 


FP
Employees means Mark Draisey, Mike Bowling and Phil Gall;


 


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OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.


 


NPA
Employees means Mike Linton and Scott Seefelt;


 


Transfer
Date means the Completion Date;


 


Transfer
Regulations means the Transfer of Undertakings (Protection of Employment)
Regulations 2006 as amended;


 


8.1           Background


 


The parties do not believe
that the establishment of IST under this Agreement constitutes a “relevant
transfer” within the meaning of the Transfer Regulations. However, in order to
establish IST FPAS and FPI will second the FP Employees and NPA will second the
NPA Employees to provide certain services to IST. In addition, in order to
provides its functions IST also envisages employing a number of employees
directly and where necessary engaging contractors to provide services on a
consultancy basis subject to standard terms and conditions as agreed between
IST, NPA and FPAS.


 


8.2           FP Employees


 


(a)           In the event
that the establishment of IST under this Agreement is found to constitute a “relevant
transfer” within the meaning of the Transfer Regulations and, as a result, the
contracts of employment of any of the FP Employees shall have effect from and
after the Transfer Date as if originally made between IST and the FP Employees
(the “Transferred FP Employees”), then the provisions in Clause 8.2(b) to
Clause 8.2(d) inclusive below shall apply.


 


(b)           All wages,
salaries, bonus and commission payments, contributions to pension schemes and
any other emoluments (whether monetary or otherwise), tax and national insurance
contributions relating to the Transferred FP Employees accrued up to and
including the Transfer Date shall be paid or borne by FPAS and by IST
thereafter and all necessary apportionments shall be made.


 


(c)           FPAS shall pay
to IST on Completion a sum equal to the cost to IST of providing all holiday
entitlements and holiday pay accrued to the Transferred FP Employees up to and
including the Transfer Date.


 


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[***] INDICATES MATERIAL THAT HAS
BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


(d)           FPAS shall indemnify
IST and NPA and any NPA Group Company and keep IST and NPA and any NPA Group
Company indemnified against all and any costs, expenses, liabilities, damages
and losses arising out of any claim, demand, action or proceeding which is made
or brought against NPA and/or any NPA Group Company and/or IST at any time:


 


(i)            by a
Transferred FP Employee and which relates to circumstances or events occurring
or arising on or prior to the Transfer Date in relation to or arising out of
his or her employment (including without limitation in relation to obligations
to inform and consult under the Transfer Regulations) save to the extent that
any such claim, demand, action or proceedings arise from the act or omission of
IST or NPA or any NPA Group Company; or


 


(ii)           by a trade
union or any other body or person representing all or any of the Transferred FP
Employees and relates to circumstances or events occurring or arising on or
prior to the Transfer Date including without limitation in relation to
obligations to inform and/or consult appropriate representatives (whether under
the Transfer Regulations or otherwise)) save to the extent that any such claim,
demand, action or proceedings arise from the act or omission of IST or NPA or
any NPA Group Company.


 


8.3           If, at any
time, any contract of employment of any employee or former employee of FPAS who
is not an FP Employee is deemed or alleged to have been effected between IST
and such person or any liability in respect of such person is deemed or alleged
to have transferred to IST as a result of the Transfer Regulations:


 


(a)           IST shall
within 15 Business Days of becoming aware of the application or alleged
application of the Transfer Regulations to any such contract notify FPAS in
writing that such employment contract is deemed or alleged to have effect as if
originally made between such person and IST; and


 


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[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


(b)                                 FPAS
may, within 10 Business Days of receipt of such notice, offer employment to any
relevant person and:


 


(i)                                     if
such offer is accepted; or


 


(ii)                                  if
such offer is not accepted within 10 Business Days after being made; or


 


(iii)                               if
no such offer is made by FPAS within 10 Business Days


 


then IST may terminate any such person’s employment
by giving lawful notice and in compliance with the statutory dismissal
procedure.


 


8.4                                 FPAS
shall fully indemnify and keep IST indemnified in full against any

loss which IST incurs in connection with or arising out of:


 


(a)                                  the
termination of employment of any person in accordance with this Clause 8.4
(provided notice of such termination is given within 30 Business Days of IST
notifying FPAS of the application or alleged application of the Transfer
Regulations to any such contract;


 


(b)                                 the
costs of all salary (including notice payments) and other emoluments (including
tax and national insurance payments thereon) in relation to any such person
whose employment is terminated in accordance with this Clause 8.4 as incurred
by IST from the alleged date of transfer to the date of such termination
(provided notice of such termination is given within 30 Business Days of IST
notifying FPAS of the application or alleged application of the Transfer
Regulations to any such contract); and


 


(c)                                  any
claim made at any time by or on behalf of any such person in connection with or
arising directly or indirectly out of their employment or engagement by FPAS or
any act, omission, event or occurrence taking place on or before the alleged
date of transfer save for in respect of any acts or omissions of IST.


 


8.5                                 IST
shall indemnify FPAS and any FP Group Company and keep FPAS and FPAS Group
Company indemnified against all and any costs, expenses, liabilities, damages
and losses arising out of any claim, demand, action or proceeding which is made
or brought by a 


 


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INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


Transferred FP Employee against FPAS and any
FP Group Company at any time and relates to circumstances or events occurring
or arising after the Transfer Date in relation to or arising out of his or her
employment and in respect of which Clause 8.2(d) does not apply and in
respect of any failure by IST to comply with its information and consultation
obligations under the Transfer Regulations save to the extent that such failure
arises from the act or omission of FPAS.


 


8.6                                 NPA Employees


 


(a)                                  In
the event that the establishment of IST under this Agreement is found to
constitute a “relevant transfer” within the meaning of the Transfer Regulations
and, as a result, the contracts of employment of any of the NPA Employees shall
have effect from and after the Transfer Date as if originally made between IST
and the NPA Employees (the “Transferred NPA Employees”), then the provisions in
Clauses 8.6(b) to 8.6(d) inclusive below shall apply.


 


(b)                                 All
wages, salaries, bonus and commission payments, contributions to pension
schemes and any other emoluments (whether monetary or otherwise), tax and
national insurance contributions relating to the Transferred NPA Employees
accrued up to and including the Transfer Date shall be paid or borne by NPA and
by IST thereafter and all necessary apportionments shall be made.


 


(c)                                  NPA
shall pay to IST on Completion a sum equal to the cost to IST of providing all
holiday entitlements and holiday pay accrued to the Transferred NPA Employees
up to and including the Transfer Date.


 


(d)                                 NPA
shall indemnify IST and FPAS and any FP Group Company and keep IST and FPAS and
any FP Group Company indemnified against all and any costs, expenses,
liabilities, damages and losses arising out of any claim, demand, action or
proceeding which is made or brought against FPAS and/or any FP Group Company
and/or IST at any time:


 


(i)                                     by
a Transferred NPA Employee and which relates to circumstances or events
occurring or arising on or prior to the Transfer Date in relation to or 


 


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INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


arising out of his or her employment
(including without limitation in relation to obligations to inform and consult
under the Transfer Regulations) save to the extent that any such claim, demand,
action or proceedings arise from the act or omission of IST or FPAS or any FP
Group Company; or


 


(ii)                                  by
a trade union or any other body or person representing all or any of the
Transferred NPA Employees and relates to circumstances or events occurring or
arising on or prior to the Transfer Date including without limitation in
relation to obligations to inform and/or consult appropriate representatives
(whether under the Transfer Regulations or otherwise)) save to the extent that
any such claim, demand, action or proceedings arise from the act or omission of
IST or FPAS or any FP Group Company.


 


8.7                                 If,
at any time, any contract of employment of any employee or former employee of
NPA who is not an NPA Employee is deemed or alleged to have been effected
between IST and such person or any liability in respect of such person is
deemed or alleged to have transferred to IST as a result of the Transfer
Regulations:


 


(a)                                  IST
shall within 15 Business Days of becoming aware of the application or alleged
application of the Transfer Regulations to any such contract notify NPA in
writing that such employment contract is deemed or alleged to have effect as if
originally made between such person and IST; and


 


(b)                                 NPA
may, within 10 Business Days of receipt of such notice, offer employment to any
relevant person and:


 


(i)                                     if
such offer is accepted; or


 


(ii)                                  if
such offer is not accepted within 10 Business Days after being made; or


 


(iii)                               if
no such offer is made by NPA within 10 Business Days


 


then IST may terminate any such person’s employment
by giving lawful notice and in compliance with the statutory dismissal
procedure.


 


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INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


8.8                                 NPA
shall fully indemnify and keep IST indemnified in full against any loss which
IST incurs in connection with or arising out of


 


(a)                                  the
termination of employment of any person in accordance with this Clause 8.8
(provided notice of such termination is given within 30 Business Days of IST
notifying NPA of the application or alleged application of the Transfer
Regulations to any such contract;


 


(b)                                 the
costs of all salary (including notice payments) and other emoluments (including
tax and national insurance payments thereon) in relation to any such person
whose employment is terminated in accordance with this Clause 8.8 as incurred
by IST from the alleged date of transfer to the date of such termination
(provided notice of such termination is given within 30 Business Days of IST
notifying NPA of the application or alleged application of the Transfer
Regulations to any such contract); and


 


(c)                                  any
claim made at any time by or on behalf of any such person in connection with or
arising directly or indirectly out of their employment or engagement by NPA or
any act, omission, event or occurrence taking place on or before the alleged
date of transfer save for in respect of any acts or omissions of IST.


 


8.9                                 IST
shall indemnify NPA and keep NPA and any NPA Group Company indemnified against
all and any costs, expenses, liabilities, damages and losses arising out of any
claim, demand, action or proceeding which is made or brought by a Transferred
NPA Employee against NPA or any NPA Group Company at any time and relates to
circumstances or events occurring or arising after the Transfer Date in
relation to or arising out of his or her employment and in respect of which
Clause 8.6(d) does not apply and in respect of any failure by IST to
comply with its information and consultation obligations under the Transfer
Regulations save to the extent that such failure arises from the act or
omission of NPA or any NPA Group Company.


 


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INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


9.                                      THE BUSINESS PLAN


 


9.1                                 The
MD and FD will jointly develop an annual business plan (the Business Plan) setting out the following
year’s expected revenue and cost components for the production and sale of
products and shall include in relation to the Financial Year to which it
relates:


 


(a)                                  a
cashflow statement giving:


 


(i)                                     an
estimate of the working capital requirements; and


 


(ii)                                 an
indication of the amount (if any) that it is considered prudent to retain, for
the purpose of meeting those requirements, out of those profits of the previous
Financial Year that are available for distribution to shareholders;


 


(b)                                 a
monthly projected profit and loss account;


 


(c)                                  an
operating budget (including capital expenditure requirements) and balance sheet
forecast;


 


(d)                                 a
management report giving business objectives for the year;


 


(e)                                  a
financial report which shall include an analysis of the estimated results of
IST for the previous Financial Year compared with the Business Plan for that
year, identifying variations in sales revenues, costs and other material items;
and


 


(f)                                    a
business development and marketing plan.


 


9.2                                 The
Business Plan for the Financial Year in which IST is formed shall be in agreed
form and adopted by IST at Completion.


 


9.3                                Other
than as set out in Clause 9.2, the Business Plan for every other Financial Year
shall be prepared by the MD and FD and presented to the Board no later than 45
days before the end of the preceding Financial Year (the first day being the
first day of the Financial Year to which the plan relates) for approval by the
Board. For the avoidance of doubt, notwithstanding any Reserved Matter being
referred to or included in the relevant Business Plan, the provisions of
Clauses 5.1 and 5.2 shall apply to the transacting of such Reserved Matter.


 


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HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


10.                            FINANCING OF IST


 


10.1                        The
Shareholders envisage that IST shall be self-financed from its own cashflow and
contributions as agreed from FPAS and NPA.


 


10.2                        There is
no obligation on the Shareholders or any members of their respective Groups to
provide any further finance to IST but, if they agree to do so, the
Shareholders shall each provide the same amount on the same terms unless they
agree otherwise in writing. For the avoidance of doubt, the failure of a
Shareholder to provide additional funding where such funding and its terms have
been agreed shall be deemed to constitute a material breach of this Agreement.


 


11.                            ACCOUNTING


 


11.1                        IST shall
at all times maintain accurate and complete accounting and other financial
records including all corporation tax computations and related documents and
correspondence with HM Revenue & Customs in accordance with the
requirements of all applicable laws and generally accepted accounting
principles applicable in the United Kingdom.


 


11.2                        IST shall
cause to be kept, at its registered office in the United Kingdom full and proper
ledgers and other books of account of all receipts and disbursements and other
financial activities of IST.


 


11.3                        Each party
and its authorised representatives shall be allowed access at all reasonable
times to examine the books and records of IST.


 


11.4                        IST shall
supply each party with the financial information necessary to keep the party
informed about how effectively the Business of IST is performing and in
particular shall supply each party with:


 


(a)                                  a
copy of each year’s Business Plan when presented to the Board in accordance
with Clause 9.3;


 


(b)                                 a
copy of the audited accounts of IST prepared in accordance with the laws
applicable in and the accounting standards, principles and practices generally 


 


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HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


accepted in the United Kingdom, within 10
Business Days of said audited accounts being approved by the Board; and


 


(c)                                  monthly
management accounts of IST to be supplied within 15 Business Days of the end of
the month to which they relate (the first day being the first day of the
following month) and the accounts shall include a profit and loss account, a
balance sheet and a cashflow statement.


 


11.5                        Each party
shall be entitled to require IST, and IST shall as soon as possible comply with
such a request, to provide any documents, information and correspondence
necessary (at the cost of the party making the request) to enable the relevant
party to comply with filing, elections, returns or any other requirements of HM
Revenue & Customs or of any other revenue or tax authority.


 


12.                            DEADLOCK


 


12.1                        There is a
deadlock if a resolution is proposed at a properly convened meeting of
Shareholders or of the Board and one of the following applies:


 


(a)                                  there
is no quorum at the meeting and no quorum at the meeting when it is reconvened
following an adjournment;


 


(b)                                 subject
to the Board following the procedure set out in Clause 6.21, where there is a
meeting of the Board and an equal number of votes are cast for and against the
resolution proposed; or


 


(c)                                  where
there is a meeting of Shareholders and an equal number of votes of Shareholders
are cast for and against the resolution;


 


(d)                                 in
respect of any Reserved Matter, the consent of FPAS and NPA is not obtained to
the matter in question.


 


12.2                        There is
no deadlock if a meeting, or adjournment, is inquorate because the person who
proposed the resolution does not attend.


 


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HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


12.3                          Either
Shareholder may within 10 Business Days of the meeting at which the deadlock
arises (the first day being the day after the meeting) serve notice on the
other Shareholder (Deadlock Notice):


 


(a)                                  stating
that in its opinion a deadlock has occurred; and


 


(b)                                 identifying
the matter giving rise to the deadlock.


 


12.4                           The
Shareholders undertake that they shall:


 


(a)                                  on
the date of service of the Deadlock Notice, refer the matter giving rise to the
deadlock to:


 


(i)                                     in
NPA’s case, the Global CEO of the Carbon Division of Morgan Crucible; and


 


(ii)                                  in
FPAS’ case, the chairman of the ultimate parent company of FPAS, for
resolution; and


 


(b)                                 use
all reasonable endeavours in good faith to resolve the dispute.


 


13.                               RESOLUTION OF DEADLOCK


 


13.1                          A Deadlock Resolution Notice is a notice
served by one. Shareholder on the other in which the server offers, at the
price for each share specified in the notice (in cash and not on deferred
terms), either to sell all its shares in IST to the recipient of the Deadlock
Resolution Notice or to buy all the recipient’s shares in IST.


 


13.2                          A
Deadlock Resolution Notice may not be revoked.


 


13.3                          If the
Shareholders are unable to resolve a deadlock arising under Clause 12.1 within
10 Business Days from the date the deadlock matter is referred to the
respective persons under Clause 12.4, then either Shareholder may within five
Business Days of the Mediation Expiry Date (defined in Clause 13.8 below)(the
first day is the day after the day of expiry) serve a Deadlock Resolution
Notice on the other.


 


13.4                          Subject
to Clause 13.7 no party shall commence any court proceedings until the
procedures in Clause 13.4 to Clause 13.6 have been completed.


 


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HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


13.5                          No party
shall be entitled to suspend the performance of its undisputed obligations
under this agreement merely by reason of the reference of any dispute to the
dispute resolution procedure contained in this Clause.


 


13.6                           The
parties shall attempt in good faith to resolve the dispute by a procedure of
mediation in accordance with the Centre for Effective Dispute Resolution
mediation rules or Model Mediation Procedure in force at the commencement
of the mediation, (or in the event that the Centre for Effective Dispute
Resolution has ceased to exist as at the time of the commencement of the
mediation, mediation rules or a model mediation procedure offered by any
other body offering commercial mediation services which shall be selected by
the Shareholder initiating or pursuing the dispute), which procedure shall be
commenced within five Business Days of the expiry of the 10 Business Day period
in Clause 13.3 above by written notification by any Shareholder to the other
that it wishes to initiate mediation (Notification)
(or longer if so agreed by the Shareholders). In the event that any provision
of such mediation rules or model mediation procedure conflicts with any
provision of this Clause the provisions of this Clause shall take precedence.
In the event that any timescales contained in such mediation rules or
model mediation procedure conflicts with the timescales referred to in this
Clause the timescales contained in such mediation rules or model mediation
procedure shall be amended accordingly such that the timescales referred to in
this Clause shall be adhered to.


 


13.7                          In the
event that resolution of the dispute is achieved in consequence of such
mediation procedure, such resolution shall be reduced to writing and, once it
is signed by the duly authorised representatives of the parties, shall be
binding on the parties. Unless concluded by a written legally binding agreement
all discussions and negotiations connected with the mediation procedure
referred to in Clause 13.4 shall be conducted in confidence and without
prejudice to the rights of the parties in any future legal or other
proceedings. Nor may such matters be produced or relied upon in evidence in any
such proceedings.


 


13.8                           If any
dispute to which this Clause relates is not resolved by the mediation procedure
referred to in Clause 13.4 and Clause 13.5 within a period of 20 Business Days
from Notification (or longer if so agreed in writing by the Shareholders), the
mediation 


 


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HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


procedure shall be terminated and, the
Deadlock Resolution procedure shall continue in accordance with 13.10 following
the expiry of a further five Business Days (the Mediation Expiry Date).


 


13.9                        The
dispute resolution process contained in this Clause 13 shall not impose any
precondition on any Shareholder or otherwise prevent or delay any Shareholder
from commencing proceedings in any court of competent jurisdiction in relation
to any dispute in which the Shareholder requires an order (whether
interlocutory or final) restraining the other Shareholder from doing any act or
compelling the other Shareholder to do any act.


 


13.10                  The recipient of
a Deadlock Resolution Notice may choose to do either of the following, at the
price for each share specified in the Deadlock Resolution Notice, by serving a
counter-notice within 10 Business Days of receiving the Deadlock Resolution
Notice (the first day is the day after the day of receipt):


 


(a)                                  buy
all the shares in IST of the server of the Deadlock Resolution Notice; or


 


(b)                                 sell
all its shares in IST to the server of the Deadlock Resolution Notice.


 


13.11                  If no
counter-notice is served within the period of 10 Business Days available, the
recipient of the Deadlock Resolution Notice is deemed to have accepted the
offer in the Deadlock Resolution Notice at the expiry of that period.


 


13.12                  The service of a
counter-notice, or deemed acceptance of the Deadlock Resolution Notice, shall
bind the Shareholders to buy and sell the shares (as the case may be) on the
terms set out in Clause 19.


 


13.13                  If both
Shareholders serve a Deadlock Resolution Notice under Clause 13.3, the

Deadlock Resolution Notice containing the highest price per share shall be
effective.


 


13.14                  If at the end of
the 10 Business Days period specified in Clause 13.3 neither Shareholder has
served a Deadlock Resolution Notice, either Shareholder may elect by written
notice served on the other Shareholder for IST to be wound up in accordance
with Clause 18 (Wind Up Notice)
provided that such Wind Up Notice is served within 20 Business Days 


 


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HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


of the relevant Shareholder being entitled to
serve a Wind Up Notice pursuant to this Clause 13.14.


 


13.15                    References in
this Clause to shares held by a Shareholder in IST are to all the shares in IST
held by that Shareholder and not to some only of those shares.


 


14.                              TRANSFER OF SHARES


 


14.1                          Each of
the Shareholders hereby agree and undertake to each other that it will not
transfer its shares in IST other than pursuant to the terms of Clause 14.2 or
Clauses 14.3 or with the written consent of the other Shareholder and that it
will not create any Encumbrance over any of its shares in IST which would
prevent the application of Clause 16 below.


 


14.2                          FPAS may
transfer the FP Shares to a FP Group Company without the consent of NPA. FPAS
undertakes to NPA to procure that any such transferee shall re-transfer the FP
Shares to another FP Group Company immediately prior to such transferee ceasing
to be a FP Group Company.


 


14.3                          NPA may
transfer the NPA Shares to an NPA Group Company without the consent of FPAS.
NPA undertakes to FPAS to procure that any such transferee shall re-transfer
the NPA Shares to another NPA Group Company immediately prior to such
transferee ceasing to be a NPA Group Company.


 


15.                               OBLIGATORY TRANSFER EVENT


 


If anything mentioned in this Clause happens to a
company which is a member of a Shareholder’s Group it is an Obligatory Transfer Event in respect of
that Shareholder and the provisions of Clause 16 apply provided that the Buyer
(as defined in Clause 16) shall have subscribed and paid for its full amount of
Equity Shares in accordance with the terms of Clause 4.4:


 


(a)                                  the
liquidation (voluntary or otherwise) of the company , other than:


 


(i)                                    a
genuine solvent reconstruction or amalgamation in which a new company assumes
(and is capable of assuming) all the obligations of the company; or


 


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HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


(ii)                                  the
solvent liquidation of a dormant company;


 


(b)                                 a
Change of Control of the company other than a Change of Control of FPI or
Morgan Crucible;


 


(c)                                  an
order is made by a court of competent jurisdiction, or a resolution is passed,
for the administration of the company, or documents are filed with the court
for the appointment of an administrator, or notice of intention to appoint an
administrator is given by the company, or its directors or by a qualifying
floating charge holder (as defined in paragraph 14 of Schedule B1 to the
Insolvency Act 1986) or any equivalent proceeding in any other jurisdiction;


 


(d)                                 any
step is taken by any person other than a member of the other Shareholder’s
Group (and is not withdrawn or discharged within 90 days) to appoint a
receiver, administrative receiver or manager in respect of the whole or a
substantial part of the assets or undertaking of the Shareholder or any company
in the Shareholder’s Group;


 


(e)                                  the
company being unable to pay its debts as they fall due for the purposes of
section 123 of the Insolvency Act 1986 or any equivalent proceeding in any
other jurisdiction;


 


(f)                                    the
company entering into a composition or arrangement with its creditors;


 


(g)                                 any
chargor enforcing any charge created over any shares held by the company in
IST.


 


16.                               TRANSFER FOLLOWING OBLIGATORY TRANSFER EVENT


 


16.1                           Where
an Obligatory Transfer Event happens to a party (in this Clause the Seller) it shall give notice of it to the
other party (in this Clause the Buyer)
as soon as possible and, if it does not, it is deemed to have given such notice
on the date on which the Buyer becomes aware of such Obligatory Transfer Event
(Notice of Obligatory Transfer Event).


 


16.2                           As soon
as practicable after service, or deemed service, of the Notice of Obligatory
Transfer Event, the Shareholders shall seek to agree the value of the Seller’s
shares and in 


 


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HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


the absence of such agreement within 10
Business Days after service, or deemed service, of the Notice of Obligatory
Transfer Event, shall procure that IST appoints an Expert in accordance with
Clause 17 to determine the Fair Value of the Seller’s shares in IST (Sale Shares).


 


16.3                        The Buyer
has the right, but not the obligation, within 10 Business Days of receiving
notification of the Fair Value determined by the Expert (the first day being
the day after the Buyer receives the Fair Value notification) to serve a notice
on the Seller to buy all of the Sale Shares at the Fair Value.


 


16.4                        In this
Clause the Fair Value of the Sale
Shares shall be the value that the Expert certifies to be the fair market value
in his opinion based on the following assumptions:


 


(a)                                  the
value of the shares in question is that proportion of the fair market value of
the entire issued share capital of IST that the Sale Shares bear to the then
total issued share capital of IST (with no premium or discount for the size of
the Seller’s shareholding or for the rights or restrictions applying to the
shares under this Agreement or the Articles);


 


(b)                                 the
sale is between a willing buyer and a willing seller on the open market;


 


(c)                                  the
sale is taking place on the date that the Obligatory Transfer Event occurred;


 


(d)                                 if
IST is then carrying on its Business as a going concern, on the assumption that
it shall continue to do so;


 


(e)                                  the
shares are sold free of all Encumbrances; and


 


(f)                                    to
take account of any other factors that the Expert reasonably believes should be
taken into account.


 


16.5                        If any
problem arises in applying any of the assumptions set out in Clause 16.4, the
Expert shall resolve the problem in whatever manner he shall, in his absolute
discretion, think fit.


 


39

















 


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INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


16.6                        The Expert
shall be requested to determine the Fair Value of the Sale Shares within 10
Business Days of his appointment and to notify the Buyer and Seller in writing
of his determination.


 


16.7                        The
service of a notice to buy under Clause 16.3 shall bind the Shareholders to buy
and sell the shares, as the case may be, in accordance with Clause 19.


 


16.8                        If at the
end of the period specified in Clause 16.3 the Buyer has not served a notice to
buy the Sale Shares, the Buyer may elect by written notice served on the Seller
for IST to be wound up in accordance with Clause 18 (Wind Up Notice) provided that such Wind Up Notice is served
within 28 days of the Buyer being entitled to serve a Wind Up Notice pursuant
to this Clause 16.8.


 


17.                            EXPERT


 


17.1                        An Expert is a person appointed in accordance
with this Clause to resolve a matter under Clause 16 of this Agreement.


 


17.2                        The
Shareholders shall endeavour to agree on the appointment of an independent
Expert.


 


17.3                        If the
Shareholders are unable to agree on an Expert within seven days of either
Shareholder serving details of a suggested expert on the other, either
Shareholder shall then be entitled to request the then President of the
Institute of Chartered Accountants in England and Wales to appoint an Expert
who is an accountant of repute with experience in the valuation of private
companies limited by shares.


 


17.4                        If the
Expert dies or becomes unwilling or incapable of acting, or does not deliver
the decision within the time required by this Clause then:


 


(a)                                  either
Shareholder may apply to the then President of the Institute of Chartered
Accountants in England and Wales to discharge the Expert and to appoint a
replacement Expert with the required expertise; and


 


(b)                                 this
Clause applies in relation to the new Expert as if be were the first Expert
appointed.


 


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[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


17.5                        All
matters under this Clause shall be conducted, and the Expert’s decision shall
be written, in the English language.


 


17.6                        The
Shareholders are entitled to make submissions to the Expert and shall provide
(or procure that others including IST provide) the Expert with such assistance
and documents as the Expert reasonably requires for the purpose of reaching a
decision, subject to the Expert agreeing to give such confidentiality
undertakings as the Shareholders may reasonably require.


 


17.7                        To the
extent not provided for by this Clause, the Expert may in his reasonable
discretion determine such other procedures to assist with the conduct of the
determination as he considers just or appropriate, including (to the extent he
considers necessary) instructing professional advisers to assist him in
reaching his determination.


 


17.8                        Each
Shareholder shall with reasonable promptness supply, and shall procure that
others within their respective Groups, supply the other Shareholder with all
information and give each other access to all documentation and personnel as
the other Shareholder reasonably requires to make a submission under this
Clause.


 


17.9                        The Expert
shall act as an expert and not as an arbitrator. The Expert’s written decision
on the matters referred to him shall be final and binding on the Shareholders
in the absence of manifest error or fraud.


 


17.10                  Each Shareholders
shall bear its own costs in relation to the reference to the Expert. The Expert’s
fees and any costs properly incurred by him in arriving at his determination
(including any fees and costs of any advisers appointed by the Expert) shall be
borne by the Shareholders equally or in such other proportions as the Expert
shall direct.


 


18.                            TERMINATION AND LIQUIDATION


 


18.1                        Except for
the provisions which this Clause states shall continue in full force after
termination, this Agreement shall terminate:


 


(a)                                  when
only a FP Group Company or a NPA Group Company holds shares in IST; or


 


41

















 


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INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


(b)                                 when
a resolution is passed by shareholders or creditors, or an order made by a
court or other competent body or person instituting a process that shall lead
to IST being wound up and its assets being distributed among IST’s creditors,
shareholders or other contributors.


 


18.2                        The
following provisions of this Agreement remain in full force after termination:


 


(a)                                  Clause
1 (Interpretation);


 


(b)                                 Clause
7 (Restrictions on the Parties);


 


(c)                                  Clause
8 (Guarantees and Indemnities);


 


(d)                                 this
Clause;


 


(e)                                  Clause
22 (Confidentiality);


 


(f)                                    Clause
27 (Whole agreement);


 


(g)                                 Clause
29 (Variation and waiver);


 


(h)                                 Clause
30 (Costs);


 


(i)                                     Clause
33 (Notice);


 


(j)                                     Clause
35 (Severance);


 


(k)                                  Clause
39 (Governing law and jurisdiction).


 


18.3                        Termination
of this Agreement shall not affect any rights or liabilities that the parties
have accrued under it up until the point of Termination.


 


18.4                        Where IST
is to be wound up and its assets distributed, the Shareholders shall agree a
suitable basis for dealing with the interests and assets of IST and shall
endeavour to ensure that:


 


(a)                                  all
existing contracts of IST are performed to the extent that there are sufficient
resources;


 


(b)                                 IST
shall not enter into any new contractual obligations;


 


(c)                                  IST
is dissolved and its assets are distributed as soon as practical; and


 


42

















 


[***] INDICATES
MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.


 


(d)                                 any
other proprietary information or intellectual property rights belonging to or
originating from a party shall be returned to it by the other party or IST and
all such proprietary information or intellectual property rights shall be erased
from the computer systems (to the extent possible) of IST and the party who is
returning it.


 


18.5                        Where any
party is required by any law, regulation or governmental or regulatory
authority to retain any proprietary information (or copies of such information)
of the other party or IST, it shall notify the other party in writing of such
retention giving details of the information that it has been required to
retain.


 


19.                            COMPLETION OF THE SALE AND PURCHASE OF SHARES IN
IST


 


19.1                        This
Clause applies only to transfers between the Shareholders pursuant to Clause 13
(Resolution of Deadlock) and Clause 16 (Transfer following Obligatory Transfer
Event).


 


19.2                        The sale
of shares under this Agreement shall be completed at the registered office of
the Company on the tenth Business Day:


 


(a)                                  after
the deemed acceptance of a Deadlock Resolution Notice under Clause 13.11 or
receipt of a counter-notice to a Deadlock Resolution Notice under Clause 13.10;
or


 


(b)                                 after
service of a notice to buy under Clause 16.3.


 


19.3                        At
completion the party selling the shares shall:


 


(a)                                  transfer
the shares free from all Encumbrances by way of a duly completed share transfer
form to the buyer together with the relevant share certificate and such other
documents as the buyer may reasonably require to show good title to the shares
or enable it to be registered as the holder of the shares;


 


(b)                                 deliver
the resignations of any directors appointed by the selling party to take effect
at completion and acknowledging that they have no claims against IST;


 


43

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


(c)                                  warrant
that it has no right to require IST to issue it with any share capital or other
securities and that no Encumbrance affects any unissued shares or other securities
of IST;


 


(d)                                 warrant
that it is the beneficial owner of the shares being sold;


 


(e)                                  warrant
that no commitment has been given to create an Encumbrance affecting the shares
being sold (or any unissued shares or other securities of IST) and that no person
has claimed any rights in respect thereof;


 


(f)                                    undertake
to do all it can, at its own cost, to give the buyer the full legal and
beneficial title to the shares; and


 


(g)                                 provide
IST with a waiver in writing of any rights such party may have to be issued
with any share capital or other securities in IST.


 


19.4                        At
completion the buying party shall pay the purchase price by telegraphic
transfer to the selling party or its lawyers (in the event that the selling
party has notified the buying party that such lawyers have been irrevocably
authorised by the selling party to receive it).


 


19.5                        At or
before completion IST shall repay any loans made by the selling party to IST
(together with any interest accrued thereon) and the parties shall use their
reasonable endeavours to procure that the selling party is released from any
guarantees and/or security arrangements that it has given in respect of IST and
its business.


 


19.6                        The
parties shall procure the registration (subject to due stamping by the buyer)
of the transfer of shares in IST pursuant to this Clause and each of them
consents to such transfer and registration pursuant to this Agreement and the
Articles.


 


19.7                        The shares
shall be sold with all rights that attach, or may in the future attach, to them
(including the right to receive all dividends and distributions declared, made
or paid on or after the events referred to in Clause 19.2(a) or Clause
19.2(b) as appropriate.


 


19.8                        The party
buying the shares is not obliged to complete the purchase of any of the shares
being sold unless the purchase of all the shares being sold is completed
simultaneously.


 


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[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


19.9                          If the
party selling the shares fails to complete the transfer of shares as required
under this Clause, IST:


 


(a)                                  is
irrevocably authorised to appoint any person to transfer the shares on the
selling party’s behalf and to do anything else that the party buying the shares
may reasonably require to complete the sale; and


 


(b)                                 may
receive the purchase price in trust for the party selling the shares, giving a
receipt that shall discharge the party buying the shares.


 


20.                               STATUS OF AGREEMENT


 


20.1                          Each
party shall, to the extent that it is able to do so, exercise all its voting
rights and other powers in relation to IST to procure that the provisions of
this Agreement are properly and promptly observed and given full force and
effect according to the spirit and intention of the agreement.


 


20.2                          If any
provision in the memorandum or Articles of IST conflicts with any provision of
this Agreement, this Agreement shall prevail.


 


20.3                          The
parties shall, when necessary, exercise their powers of voting and any other
rights and powers they have to amend, waive or suspend a conflicting provision
in the memorandum or Articles to the extent necessary to permit IST and its
business to be administered as provided in this Agreement.


 


21.                               INTELLECTUAL PROPERTY RIGHTS


 


21.1                           FPII
shall own and retain all FPII IPR and NPA shall own and retain all NPA IPR, in each
case, subject to the terms of the FPII Sub-contract and the NPA Sub-contract.


 


22.                               CONFIDENTIALITY


 


22.1                           In this
Clause Confidential Information means
any information:


 


(a)                                  which
either party may have or acquire (whether before or after the date of this
Agreement) in relation to the customers, suppliers, business, assets or affairs
of 


 


45

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


IST (including, without
limitation, any information provided pursuant to Clause 11);


 


(b)                                 which
either party or any member of its Group may have or acquire (whether before or
after the date of this Agreement) in relation to the customers, suppliers,
business, assets or affairs of the other party or any member of the other party’s
Group, as a consequence of the negotiations relating to this Agreement or any
other agreement or document referred to in this Agreement or the performance of
the agreement or any other agreement or document referred to in this Agreement;
or


 


(c)                                  which
relates to the contents of this Agreement (or any agreement or arrangement
entered into pursuant to this Agreement),


 


but excludes the information in Clause 22.2.


 


22.2                           Information
is not Confidential Information if:


 


(a)                                  it
is or becomes public knowledge other than as a direct or indirect result of the
information being disclosed in breach of this Agreement;


 


(b)                                 either
party can establish to the reasonable satisfaction of the other party that it
found out the information from a source not connected with the other party or
its Group and that the source is not under any obligation of confidence in
respect of the information;


 


(c)                                  either
party can establish to the reasonable satisfaction of the other party that the
information was known to the first party before the date of this Agreement and
that it was not under any obligation of confidence in respect of the
information; or


 


(d)                                 the
parties agree in writing that it is not confidential.


 


22.3                          Each
party shall at all times use all reasonable endeavours to keep confidential (and
to ensure that its employees, agents, Group members and the employees and
agents of such Group members, and IST (in respect of information specified in
Clause 22.1(b) and 


 


46

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


Clause 22.1(c)) shall keep confidential) any
Confidential Information and shall not use or disclose any such Confidential
Information except:


 


(a)                                  to
another member of the FP Group or NPA Group, as the case may be, or to a party’s
professional advisers where such disclosure is for a purpose related to the
operation of this Agreement;


 


(b)                                 with
the written consent of such of IST or the party or any member of its Group that
the information relates to;


 


(c)                                  as
may be required by law or by the rules of any recognised stock exchange,
or governmental or other regulatory body, when the party concerned shall, if
practicable, supply a copy of the required disclosure to the other before it is
disclosed and incorporate any amendments or additions reasonably required by the
other and which would not thereby prevent the disclosing party from complying
with its legal obligations;


 


(d)                                 to
any tax authority to the extent reasonably required for the purposes of the tax
affairs of the party concerned or any member of its Group; or


 


(e)                                  if
the information comes within the public domain (otherwise than as a result of
the breach of this Clause 22.3).


 


22.4                        Each party
shall inform (and shall use all reasonable endeavours to procure that any
Subsidiary and IST shall inform) any officer, employee or agent or any
professional adviser advising it in relation to the matters referred to in this
Agreement, or to whom it provides Confidential Information, that such
information is confidential and shall require them:


 


(a)                                  to
keep it confidential; and


 


(b)                                 not
to disclose it to any third party (other than those persons to whom it has
already been disclosed in accordance with the terms of this Agreement).


 


22.5                        Upon
termination of this Agreement, either party may demand from the other and IST
the return of any documents containing Confidential Information in relation to
the first party 


 


47

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


by notice in writing whereupon the other
party shall (and shall use all reasonable endeavours to ensure that its Group
members, and its officers and employees and those of its Group members and IST
shall):


 


(a)                                  return
such documents; and


 


(b)                                 destroy
any copies of such documents and any other document or other record
reproducing, containing or made from or with reference to the Confidential
Information,


 


save, in each case, for any submission to or filings
with governmental, tax or regulatory authorities. Such return or destruction
shall take place as soon as practicable after the receipt of any such notice.


 


22.6                        The
obligations of each of the parties in this Clause 22 shall continue without
limit in time and notwithstanding termination of this Agreement for any cause.


 


23.                            PUBLICITY


 


23.1                        Any public
announcements in relation this Agreement and/or the formation of IST require
the prior written consent of both Shareholders.


 


24.                            DATA PROTECTION


 


24.1                        The
Shareholders acknowledge that IST may be subject to the requirements of the
Data Protection Act 1998 and shall therefore make all reasonable efforts to
ensure that they and IST comply with any obligations arising as a result


 


25.                            FREEDOM OF INFORMATION


 


25.1                        The
parties acknowledge that IST may be subject to the requirements of the Freedom
of Information Act 2000 as a result of its dealings with the UK MOD and shall
therefore make all reasonable efforts to ensure that they and IST perform any
disclosure obligations arising as a result.


 


48
















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


26.                               WARRANTY


 


Each party warrants and represents to the other
that, at the date of this Agreement, IST has not carried on any business, has
no assets or liabilities, has no employees and is not a party to any contracts
except as necessary to comply with Clause 4.


 


27.                               WHOLE AGREEMENT


 


27.1                           This
Agreement, and any documents referred to in it constitute the whole agreement
between the Shareholders or any relevant Group company and supersede any
previous arrangement, understanding or agreement between them relating to the
subject matter they cover.


 


27.2                          Each
party acknowledges that in entering into this Agreement, and any documents
referred to in it, it does not rely on, and shall have no remedy in respect of,
any statement, representation, assurance or warranty of any person other than
as expressly set out in this Agreement or those documents.


 


27.3                           Nothing
in this Clause 27 operates to limit or exclude any liability for fraud.


 


28.                               ASSIGNMENTS


 


28.1                          No
person may assign, or grant any Encumbrance over or deal in any way with, any
of its rights under this Agreement or any document referred to in it without
the prior written consent of all the parties (such consent not to be
unreasonably conditioned, withheld or delayed).


 


28.2                           Each
person that has rights under this Agreement is acting on its own behalf.


 


29.                               VARIATION AND WAIVER


 


29.1                           A
variation of this Agreement shall be in writing and signed by or on behalf of
all parties.


 


29.2                          A waiver
of any right under this Agreement is only effective if it is in writing and it
applies only to the person to which the waiver is addressed and the
circumstances for which it is given.


 


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INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


29.3                         A person
that waives a right in relation to one person, or takes or fails to take any
action against that person, does not affect its rights against any other
person.


 


29.4                         No
failure to exercise or delay in exercising any right or remedy provided under
this Agreement or by law constitutes a waiver of such right or remedy or shall
prevent any future exercise in whole or in part thereof.


 


29.5                         No single
or partial exercise of any right or remedy under this Agreement shall preclude
or restrict the further exercise of any such right or remedy.


 


29.6                         Unless
specifically provided otherwise, rights and remedies arising under this
Agreement are cumulative and do not exclude rights and remedies provided by
law.


 


30.                               COSTS


 


Unless otherwise provided, all costs in connection
with the negotiation, preparation, execution and performance of this Agreement,
shall be borne by the party that incurred the costs.


 


31.                             NO PARTNERSHIP


 


The parties to this Agreement are not in partnership
with each other and there is no relationship of principal and agent between
them.


 


32.                             THIRD PARTY RIGHTS


 


32.1                         A person
who is not a party to this Agreement shall not have any rights under or in connection
with it by virtue of the Contracts (Rights of Third Parties) Act 1999.


 


32.2                         The right
of the parties to terminate, rescind or agree any amendment, variation, waiver
or settlement under this Agreement is not subject to the consent of any person
that is not a party to the agreement.


 


33.                             NOTICE


 


33.1                         A notice
given under this Agreement:


 


(a)                                  shall
be in writing in the English language (or be accompanied by a properly prepared
translation into English);


 


50

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


(b)                                 shall
be sent for the attention of the person, and to the address, or fax number,
given in this Clause 33 (Or such other address, fax number or person as the
relevant party may notify to the other party, such notice to take effect five
days from the notice being received); and


 


(c)                                  shall
be:


 


(i)                                     delivered
personally; or


 


(ii)                                  delivered
by commercial courier; or


 


(iii)                               sent
by fax; or


 


(iv)                              sent
by recorded delivery.


 


33.2                           The
addresses for service of notice are:


 


(a)                                  FORCE
PROTECTION ADVANCED SOLUTIONS LIMITED


 


	
  Address:

  	
   

  	
  Narrow Quay House, Narrow Quay, Bristol BS1
  4AH

  
	
   

  	
   

  	
   

  
	
  For the attention of:

  	
   

  	
  Lenna Macdonald (Corporate
  Secretary)/Charles Mathis (Director)

  
	
   

  	
   

  	
   

  
	
  Fax number:

  	
   

  	
  +44 0117 902 4400

  



 


(b)                                 FORCE
PROTECTION INDUSTRIES, INC


 


	
  Address:

  	
   

  	
  9801 Highway 78, Ladson, South Carolina
  29456

  
	
   

  	
   

  	
   

  
	
  For the attention of:

  	
   

  	
  General Counsel

  
	
   

  	
   

  	
   

  
	
  Fax number:

  	
   

  	
  (843) 553 1311

  



 


(c)                                  NP
AEROSPACE LIMITED


 


	
  Address:

  	
   

  	
  473 Foleshill Road, Coventry, West
  Midlands, CV6 5AQ

  
	
   

  	
   

  	
   

  
	
  For the attention of:

  	
   

  	
  The Managing Director

  
	
   

  	
   

  	
   

  
	
  Fax number:

  	
   

  	
  +44 2476687313

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
   

  



 


51

















 


[***] INDICATES MATERIAL THAT HAS BEEN
OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


	
  THE MORGAN CRUCIBLE COMPANY PLC

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Quadrant, 55-57 High St, Windsor,
  Berkshire, SL4 1LP

  
	
   

  	
   

  	
   

  
	
  FAO:

  	
   

  	
  The General Counsel

  
	
   

  	
   

  	
   

  
	
  FAX:

  	
   

  	
  +44 1753 850872

  



 


33.3                         A notice
is deemed to have been received:


 


(a)                                  if
delivered personally, at the time of delivery; or


 


(b)                                 if
delivered by commercial courier, at the time of signature of the courier’s
receipt; or


 


(c)                                  if
sent by fax, at the time of transmission; or


 


(d)                                 if
sent by recorded delivery, 48 hours from the date of posting; or


 


(e)                                  if
deemed receipt under the previous paragraphs of this sub-Clause is not within
business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is
not a public holiday in the place of receipt), when business next starts in the
place of deemed receipt.


 


33.4                         To prove
service it is sufficient to prove that the notice was transmitted by fax to the
fax number of the party or, in the case of post, that the envelope containing
the notice was properly addressed and posted.


 


34.                             INTEREST ON LATE PAYMENT


 


34.1                         Where a
sum is required to be paid under this Agreement but is not paid before or on
the date the parties agreed, the person due to pay the sum shall also pay an
amount equal to interest on that sum at the rate set out in Clause 34.2 for the
period beginning with the date on which the payment was due arid ending with
the date the sum is paid (and the period shall continue after as well as before
judgment).


 


34.2                         The rate
of interest shall be [***]% per
annum above the base lending rate from time to time of Barclays Bank plc.
Interest shall accrue on a daily basis and be compounded quarterly.


 


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INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


34.3                           This
Clause 34 is without prejudice to any claim for interest under the Late Payment
of Commercial Debts (Interest) Act 1998.


 


35.                               SEVERANCE


 


35.1                           If any
provision of this Agreement (or part of a provision) is found by any court or
administrative body of competent jurisdiction to be invalid, unenforceable or
illegal, the other provisions shall remain in force.


 


35.2                           If any
invalid, unenforceable or illegal provision would be valid, enforceable or
legal if some part of it were deleted or modified, the provision shall apply
with whatever modification is necessary to give effect to the commercial
intention of the parties.


 


36.                               FURTHER ASSURANCE


 


Without prejudice to Clause 4, each party shall
promptly execute and deliver all such documents, and do all such things, as the
other party may from time to time reasonably require for the purpose of giving
full effect to the provisions of this Agreement.


 


37.                               COUNTERPARTS


 


This Agreement may be executed in any number of
counterparts, each of which is an original and which together have the same
effect as if each party had signed the same document.


 


38.                               AGREEMENT SURVIVES COMPLETION


 


This Agreement (other than obligations that have
already been fully performed) remains in full force after Completion.


 


39.                               GOVERNING LAW AND JURISDICTION


 


39.1                           This
Agreement and, subject to Clause 13, any disputes or claims arising out of or
in connection with its subject matter, are governed by and construed in
accordance with the law of England.


 


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INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


39.2                         Subject
to Clause 13, the parties irrevocably agree that the courts of England have
exclusive jurisdiction to settle any dispute or claim that arises out of or in
connection with this Agreement.


 


This Agreement
has been entered into on the date stated at the beginning of it.


 


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INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


Schedule 1


 


Matters reserved for shareholder approval


 


1                                          Permitting
the registration of any person as a member of IST other than FPAS and NPA in
relation to the investment referred to in Clause 4 and any of their valid
transferees in accordance with the terms of this Agreement (such valid
transferees to include for the avoidance of doubt any members of their
respective Groups).


 


2                                          Issuing
or granting any right or option to subscribe for or otherwise acquire any share(s) in
IST or consolidating or sub-dividing or altering any of the rights attached to
any of the issued shares in IST or any purchase by IST of any of its own shares
or any increase or reduction of its share capital (save as contemplated by
Clause 4.4) or repayment of any amounts standing to the credit of any share
premium account or capital redemption reserve or otherwise reorganising its
share capital or entering into any scheme or arrangement with its creditors.


 


3                                          Altering
the name of IST.


 


4                                          Altering
in any respect the memorandum or Articles of IST or the rights attaching to any
of its shares.


 


5                                          Changing
the nature of IST’s Business or the commencement of any new business by IST
which is not ancillary to the Business.


 


6                                          Making
any acquisition or disposal by IST of any material asset(s) otherwise than
in the ordinary course of business.


 


7                                          Creating
or granting any Encumbrance over the whole or any part of the Business,
undertaking or assets of IST or agreeing to do so.


 


8                                          Any
borrowing by IST in excess of the amounts set out in any annual Business Plan
approved by the Board.


 


9                                          Without
prejudice to Clause 4.7(b), any recommendation for the declaration and payment
of dividends.


 

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


10                                    Any
provision of any guarantees in respect of the obligations of any person other
than a

subsidiary (direct or indirect) of IST, other than in the ordinary course of
business.


 


11                                    The
initial delegation of authority to the MD and any other executive officers and
any material changes to such delegation.


 


12                                    Any
change in the number or method of selecting the members of the Board.


 


13                                    Any
change to the Approvals Matrix.


 


14                                    Establishing
any employee incentive share scheme.


 


15                                    Subscribing
or otherwise acquiring or disposing of any shares in the capital of any other
company.


 


16                                    Ceasing
or proposing to cease to carry on the business of IST or for it to be wound up
save where it is insolvent.


 


17                                    Applying
or permitting its directors to apply to petition to the. Court for an
administration order to be made in respect of IST.


 


18                                    Establishing
or acquiring any new branch agency trading establishment or business or

closing or disposing of any such branch agency trading establishment or
business.


 


19                                    Making
any change to IST’s:


 


(a)                                  auditors;


 


(b)                                 bankers
or the terms of the mandate given to such bankers in relation to its
account(s); or


 


(c)                                  accounting
reference date or its accounting policies (save in respect of any alteration
required to comply with generally accepted accounting practice in the UK).


 


20                                    Engaging
any employee on terms that either his contract cannot be terminated by three
months’ notice or less or his emoluments and/or commissions or bonuses are or
are likely to be at the rate of £[***] per
annum or more or increasing the emoluments and/or commissions or bonuses of any
employee to more than £[***] per 


 


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[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.


 


annum or varying the terms of employment of
any employee earnings (or so that after such variation he will or is likely to
earn) more than £[***] per annum.


 


21                                    Varying
or making any binding decisions on the terms of employment and service of any
director or increasing or varying the salary or other benefits of any such
officer or appoint or dismissing any such officer other than in accordance with
the express provisions of this Agreement.


 


22                                    Making
any loan or advance or giving any credit (other than in the ordinary course of
business) to any person or acquiring any loan capital of any corporate body
(wherever incorporated).


 


23                                    Conducting
any dispute material to IST save for the collection of debts arising in the
ordinary course of the business carried on by IST or any application for an
interim injunction or other application or action (including interim defence)
which is urgently required in the best interests of IST in circumstances in
which it is not reasonably practicable to obtain prior consent as aforesaid.


 


24                                    Proposing
or implementing any pension scheme or varying any of the benefits payable to
members of any pension scheme.


 


25                                    Paying
or agreeing to pay any dividend or making or agreeing to make any distribution
to any Shareholder.


 


26                                    The
incurring by IST of capital expenditure in excess of £[***] per item or in excess of £[***] in aggregate during any financial
year of IST.


 


27                                    The
entering into by IST of any Material Contract or, subject to Clause 6.9, the
amendment, variation or extension of any Material Contract.


 


28                                    The
entering into by IST of any contract or arrangement outside the ordinary course
of trading or otherwise than at arm’s length.


 


29                                    The
decision whether IST submits a tender for any contract or arrangement where the
goods or services to be provided by IST in circumstances where such tender if
it were successful would lead to a Material Contract.


 


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INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


30                                    The
licensing of intellectual property rights by IST to any party other than
pursuant to the MOD Contract, the FPAS Sub-contract or the NPA Sub-contract.


 


31                                    Subject
to Clause 6.9, the making of any amendments to the MOD Contract.


 


32                                    The
surrender whether for consideration or otherwise of losses or other amounts
eligible for relief from taxation by IST to any Shareholder or member of its
relevant Group.


 


33                                    Engaging
or substituting any secondee or consultant on terms where such secondment or
consultant cost exceeds £[***] per
annum or its pro-rated equivalent if for part only of a year.


 


34                                    Subject
to Clause 6.9, the amendment, variation or extension of either of the FP
Subcontract and the NPA Subcontract.


 


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INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


Schedule 2


 


Covenants


 


1                                          IST
shall:


 


(a)                                  IST
will adopt the Business Plan and use its reasonable endeavours to implement it;


 


(b)                                 effect
any expansion or development of the Business only in accordance with the
Business Plan or other operating budgets and business plans previously approved
by the Board and through IST (or a wholly owned subsidiary thereof);


 


(c)                                  insure
with a reputable insurance office and shall keep so insured at all times all
its assets and undertakings against loss or damage or such other risks and in
such manner and to such extent as shall be in accordance with good commercial
practice or otherwise as the Shareholders may reasonably require in writing and
shall ensure that the same are reviewed annually by its insurance brokers and
shall supply a copy of such review to the Shareholders;


 


(d)                                 use
all its reasonable endeavours to ensure that all know-how and confidential
information of IST is kept confidential;


 


(e)                                  advise
the Shareholders in writing promptly of any material litigation;


 


(f)                                    have
and maintain all licences and authorisations necessary under any law or
regulation affecting the conduct of its business;


 


(g)                                 preserve
and defend its Intellectual Property Rights to the extent commercially
appropriate to do so.


 


1.2                                 Each
of the Shareholders undertakes with the other Shareholder and IST (in its
capacity as a shareholder of IST) to use its reasonable endeavours to do all
things necessary to procure that the provisions of this Agreement and the
Articles are duly performed and observed.


 

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.


 


Schedule 3


 


Agreed Form Documents


 


Approvals
Matrix


 


Agreed Key
Secondment Terms


 


Business Plan


 

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


Signed by Michael
Moody


 


for and on
behalf of FORCE


 


	
  PROTECTION INDUSTRIES, INC.

  
	
   

  
	
   

  	
  /s/ Michael
  Moody

  
	
   

  	
   

  
	
   

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signed by Roger Medwell

  	
   

  
	
   

  	
   

  
	
  for and on behalf of NP AEROSPACE LIMITED

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Roger
  Medwell

  
	
   

  	
   

  
	
   

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signed by Michael Linton

  	
   

  
	
   

  	
   

  
	
  for and on behalf of INTEGRATED

  	
   

  
	
  SURVIVABILITY TECHNOLOGIES

  	
   

  
	
  LIMITED

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Michael
  Linton

  
	
   

  	
   

  
	
   

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signed by Lenna Macdonald

  	
   

  
	
   

  	
   

  
	
  for and on behalf of FORCE PROTECTION

  	
   

  
	
  ADVANCED SOLUTIONS LIMITED

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Lenna
  Ruth Macdonald

  
	
   

  	
   

  
	
   

  	
  Director