<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 10, 1997.
REGISTRATION NO. 333-19449
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
SPECTRAN CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 04-2729372
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
50 HALL ROAD
STURBRIDGE, MASSACHUSETTS 01566
(508) 347-2261
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
RAYMOND E. JAEGER, PH.D.
CHAIRMAN OF THE BOARD
SPECTRAN CORPORATION
50 HALL ROAD
STURBRIDGE, MASSACHUSETTS 01566
(508) 347-2261
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
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IRA S. NORDLICHT, ESQ. WILLIAM C. LANCE, ESQ.
HACKMYER & NORDLICHT PEABODY & BROWN
645 FIFTH AVENUE 101 FEDERAL STREET
NEW YORK, NEW YORK 10022 BOSTON, MASSACHUSETTS 02110
(212) 421-6500 (617) 345-1000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<S> <C>
1.1 Proposed Form of Underwriting Agreement. (Incorporated by reference from
Registrant's Registration Statement on Form S-3 (Reg. No. 333-19449) filed January
9, 1997.)
3.1 Certificate of Incorporation of the Registrant, as amended. (Incorporated by
reference to Registrant's Annual Report on Form 10-K for its fiscal year ended
December 31, 1991.)
3.2 By-Laws of the Registrant, as amended. (Incorporated by reference to Registrant's
Annual Report on Form 10-K for its fiscal year ended December 31, 1991.)
4.5 Form of Stock Certificate for Voting Common Stock. (Incorporated by reference to
Registrant's Registration Statement on Form S-1 (Reg. No. 2-83172) effective June
2, 1983.)
5.1 Opinion of Hackmyer & Nordlicht.
10.1 Registrant's 1991 Incentive Stock Option Plan. (Incorporated by reference to the
Registrant's Proxy Statement dated April 9, 1991.)
10.7 License Agreement dated August 15, 1981 between the Registrant and Western Electric
Company, Incorporated. (Incorporated by reference to Registrant's Registration
Statement on Form S-1 (Reg. No. 2-83172) effective June 2, 1983.) (Registrant has
been granted confidential treatment of portions of this Exhibit.)
10.46 Common Stock Purchase Warrant issued to Allen & Company Incorporated. (Incorporated
by reference to the Registrant's Annual Report on Form 10-K for its fiscal year
ended December 31, 1990.)
10.49 License Agreement dated as of the first day of January 1991 by and between the
Registrant and Corning Incorporated. (Registrant has been granted confidential
treatment of portions of this Exhibit.) (Incorporated by reference to Registrant's
Annual Report on Form 10-K for its fiscal year ended December 31, 1991.)
10.53 Asset Purchase Agreement between Ensign-Bickford Optics Company and SpecTran
Specialty Optics Company dated February 18, 1994. (Incorporated by reference to the
Registrant's Report on Form 8-K dated March 3, 1994.)
10.54 Stock Purchase Agreement between Ensign-Bickford Optical Technologies, Inc. and
EBOT Acquisition Corp. dated February 18, 1994. (Incorporated by reference to the
Registrant's Report on Form 8-K dated March 3, 1994.)
10.55 Lease between 150 Fisher Associates Limited Partnership and SpecTran Specialty
Optics Company dated February 18, 1994. (Incorporated by reference to the
Registrant's Report on Form 10-K dated March 30, 1994.)
10.56 Lease between Avon Park Properties and SpecTran Specialty Optics Company dated
February 18, 1994. (Incorporated by reference to the Registrant's Report on Form
10-K dated March 30, 1994.)
10.57 Lease between Avon Park Properties and SpecTran Specialty Optics Company dated
February 18, 1994. (Incorporated by reference to the Registrant's Report on Form
10-K dated March 30, 1994.)
10.61 Stock Purchase Agreement among APD Acquisition Corp. and Irving N. Dwyer, David P.
DaVia, The Irving N. Dwyer and Annette M. Dwyer Charitable Remainder Trust and The
DaVia Charitable Remainder Trust. (Incorporated by reference to the Registrant's
Report on Form 10-K dated March 31, 1995)
10.62 Directors Retirement Plan dated December 27, 1995. (Incorporated by reference to
the Registrant's Report on Form 10-K dated March 29, 1996)
10.63 Registrant's Employee Profit Sharing Plan as revised and adopted effective January
1, 1995. (Incorporated by reference to the Registrant's Report on Form 10-K dated
March 29, 1996)
10.64 Lease between Mark C. Yellin and Applied Photonic Devices, Inc. dated January 15,
1996. (Incorporated by reference to the Registrant's Report on Form 10-K dated
March 29, 1996)
10.65 Lease between Fabrilock, Inc. and Applied Photonic Devices, Inc. dated February 6,
1996. (Incorporated by reference to the Registrant's Report on Form 10-K dated
March 29, 1996)
</TABLE>
II-1
<PAGE> 3
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10.69 Supplemental Retirement Agreement between SpecTran Corporation and Raymond E.
Jaeger dated May 8, 1996. (Incorporated by reference to the Registrant's Quarterly
Report on Form 10-Q dated August 9, 1996)
10.70 Supplemental Retirement Agreement between SpecTran Corporation and Bruce A. Cannon
dated May 8, 1996. (Incorporated by reference to the Registrant's Quarterly Report
on Form 10-Q dated August 9, 1996)
10.71 Supplemental Retirement Agreement between SpecTran Corporation and Crawford L.
Cutts dated May 8, 1996. (Incorporated by reference to the Registrant's Quarterly
Report on Form 10-Q dated August 9, 1996)
10.72 Supplemental Retirement Agreement between SpecTran Corporation and William B. Beck
dated May 8, 1996. (Incorporated by reference to the Registrant's Quarterly Report
on Form 10-Q dated August 9, 1996)
10.73 Supplemental Retirement Agreement between SpecTran Corporation and John E. Chapman
dated May 8, 1996. (Incorporated by reference to the Registrant's Quarterly Report
on Form 10-Q dated August 9, 1996)
10.74 Lease between CRJ Realty Trust and SpecTran Communication Fiber Technologies, Inc.
dated July 22, 1996. (Incorporated by reference to the Registrant's Quarterly
Report on Form 10-Q dated August 9, 1996)
10.75 Contractual Agreement Between Lucent Technologies Inc. and SpecTran Corporation
dated October 3, 1996. (Registrant has been granted confidential treatment for
portions of this Exhibit) (Incorporated by reference to the Registrant's Quarterly
Report on Form 10-Q/A dated February 3, 1997)
10.76 Three Year Multimode Optical Fiber Supply Contract between Corning Incorporated and
SpecTran Corporation dated as of January 1, 1996. (Registrant has been granted
confidential treatment for portions of this Exhibit) (Incorporated by reference to
the Registrant's Quarterly Report on Form 10-Q/A dated February 3, 1997)
10.79 Key Employee Incentive Plan effective as of January 1, 1996. (Incorporated by
reference to the Registrant's Quarterly Report on Form 10-Q dated November 13,
1996)
10.80 Employment Agreement between SpecTran Corporation and Raymond E. Jaeger dated as of
December 14, 1992. (Incorporated by reference to the Registrant's Quarterly Report
on Form 10-Q dated November 13, 1996)
10.81 Employment Agreement between SpecTran Corporation and Bruce A. Cannon dated as of
December 14, 1992. (Incorporated by reference to the Registrant's Quarterly Report
on Form 10-Q dated November 13, 1996)
10.82 Employment Agreement between SpecTran Corporation and John E. Chapman dated as of
December 14, 1992. (Incorporated by reference to the Registrant's Quarterly Report
on Form 10-Q dated November 13, 1996)
10.83 Employment Agreement between SpecTran Corporation and Crawford L. Cutts dated as of
January 1, 1996. (Incorporated by reference to the Registrant's Quarterly Report on
Form 10-Q dated November 13, 1996)
10.84 Employment Agreement between SpecTran Corporation and William B. Beck dated as of
February 18, 1994. (Incorporated by reference to the Registrant's Quarterly Report
on Form 10-Q dated November 13, 1996)
10.85 Employment Agreement between SpecTran Corporation and Glenn E. Moore dated as of
December 1995. (Incorporated by reference to the Registrant's Quarterly Report on
Form 10-Q dated November 13, 1996)
10.86 Note Purchase Agreement between SpecTran Corporation and Massachusetts Mutual Life
Insurance Company dated as of December 1, 1996. (Incorporated by reference to the
Registrant's Current Report on Form 8-K dated December 31, 1996)
10.87 Note Purchase Agreement between SpecTran Corporation and CM Life Insurance Company
dated as of December 1, 1996. (Incorporated by reference to the Registrant's
Current Report on
Form 8-K dated December 31, 1996)
</TABLE>
II-2
<PAGE> 4
<TABLE>
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10.88 Note Purchase Agreement between SpecTran Corporation and The Mutual Life Insurance
Company of New York dated as of December 1, 1996. (Incorporated by reference to the
Registrant's Current Report on Form 8-K dated December 31, 1996)
10.89 Note Purchase Agreement between SpecTran Corporation and Atwell & Co. dated as of
December 1, 1996. (Incorporated by reference to the Registrant's Current Report on
Form 8-K dated December 31, 1996)
10.90 Security Agreement among SpecTran Corporation, SpecTran Communication Fiber
Technologies, Inc., SpecTran Specialty Optics Company, Applied Photonic Devices,
Inc. and Fleet National Bank, as Trustee, dated as of December 1, 1996.
(Incorporated by reference to the Registrant's Current Report on Form 8-K dated
December 31, 1996)
10.91 Trademark Security Agreement among SpecTran Corporation, SpecTran Communication
Fiber Technologies, Inc, SpecTran Specialty Optics Company, Applied Photonic
Devices, Inc. and Fleet National Bank, as Trustee, dated as of December 1, 1996.
(Incorporated by reference to the Registrant's Current Report on Form 8-K dated
December 31, 1996)
10.92 Patent Collateral Assignment among SpecTran Corporation, SpecTran Communication
Fiber Technologies, Inc, SpecTran Specialty Optics Company, Applied Photonic
Devices, Inc. and Fleet National Bank, as Trustee, dated as of December 1, 1996.
(Incorporated by reference to the Registrant's Current Report on Form 8-K dated
December 31, 1996)
10.93 Pledge Agreement among SpecTran Corporation, SpecTran Communication Fiber
Technologies, Inc, SpecTran Specialty Optics Company, Applied Photonic Devices,
Inc. and Fleet National Bank, as Trustee, dated as of December 1, 1996.
(Incorporated by reference to the Registrant's Current Report on Form 8-K dated
December 31, 1996)
10.94 Mortgage, Assignment of Rents and Security Agreement by SpecTran Communication
Fiber Technologies, Inc. to Fleet National Bank, as Trustee, dated as of December
1, 1996. (Incorporated by reference to the Registrant's Current Report on Form 8-K
dated December 31, 1996)
10.95 Open-End Mortgage, Assignment of Rents and Security Agreement by SpecTran Specialty
Optics Company to Fleet National Bank, as Trustee, dated as of December 1, 1996.
(Incorporated by reference to the Registrant's Current Report on Form 8-K dated
December 31, 1996)
10.96 Guaranty Agreement dated as of December 1, 1996 by SpecTran Communication Fiber
Technologies, Inc., SpecTran Specialty Optics Company and Applied Photonic Devices,
Inc. in favor of Massachusetts Mutual Life Insurance Company, CM Life Insurance
Company, The New York Mutual Life Insurance Company and Atwell & Co. (Incorporated
by reference to the Registrant's Current Report on Form 8-K dated December 31,
1996)
10.97 Loan Agreement among SpecTran Corporation, SpecTran Communication Fiber
Technologies, Inc., SpecTran Specialty Optics Company, Applied Photonic Devices,
Inc. and Fleet National Bank dated as of December 1, 1996. (Incorporated by
reference to the Registrant's Current Report on Form 8-K dated December 31, 1996)
10.98 Limited Liability Company Agreement of General Photonics, LLC between Applied
Photonic Devices, Inc. and General Cable Industries, Inc. dated as of December 23,
1996. (Incorporated by reference to the Registrant's Current Report on Form 8-K
dated January 8, 1997)
10.99 Asset Purchase Agreement among Applied Photonic Devices, Inc., SpecTran
Corporation, General Cable Corporation and General Cable Industries, Inc. dated as
of December 23, 1996. (Incorporated by reference to the Registrant's Current Report
on Form 8-K dated January 8, 1997)
10.100 Investor's Representations, Contribution Agreement and Subscription Agreement among
Applied Photonic Devices, Inc., SpecTran Corporation and General Photonics, LLC
dated as of December 23, 1996. (Incorporated by reference to the Registrant's
Current Report on Form 8-K dated January 8, 1997)
10.101 Non-Competition Agreement among General Cable Industries, Inc., General Cable
Corporation, Applied Photonic Devices, Inc., SpecTran Corporation and General
Photonics, LLC dated December 23, 1996. (Registrant has been granted confidential
treatment for portions of this Exhibit) (Incorporated by reference to the
Registrant's Current Report on Form 8-K/A dated February 3, 1997)
</TABLE>
II-3
<PAGE> 5
<TABLE>
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10.102 Standstill Agreement among General Cable Industries, Inc., General Cable
Corporation and SpecTran Corporation dated as of December 23, 1996. (Incorporated
by reference to the Registrant's Current Report on Form 8-K dated January 8, 1997)
10.103 Letter amendment to Three Year Multimode Optical Fiber Supply Contract between
Corning Incorporated and SpecTran Corporation dated as of January 1, 1996.
(Registrant has been granted confidential treatment for portions of this Exhibit.)
(Incorporated by reference from Registrant's Current Report on Form 8-K/A dated
February 3, 1997)
10.104 Letter amendment to Employment Agreement between SpecTran Specialty Optics Company
and William B. Beck dated April 18, 1996. (Incorporated by reference to the
Registrant's Current Report on Form 8-K dated January 8, 1997)
10.105 Cross-Indemnity Agreement between SpecTran Corporation and Allen & Company
Incorporated.
23.1 Report and Consent of KPMG Peat Marwick. (Incorporated by reference to the
Registrant's Registration Statement on Form S-3 (Reg. No. 333-19449) filed January
9, 1997)
23.2 Consent of Hackmyer & Nordlicht. (Included in the opinion of counsel set forth as
Exhibit 5.1)
24.0 Power of Attorney. (Incorporated by reference to the Registrant's Registration
Statement on Form
S-3 (Reg. No. 333-19449) filed January 9, 1997)
</TABLE>
ITEM 17. UNDERTAKINGS
5. (i) For the purpose of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(ii) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 2 to the Registration Statement on
Form S-3 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sturbridge, State of Massachusetts, on February 10,
1997.
SPECTRAN CORPORATION
/S/ RAYMOND E. JAEGER,
PH.D.
By:.................................
RAYMOND E. JAEGER, PH.D.
CHAIRMAN OF THE BOARD
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 2 to the Registration Statement on Form S-3 has been signed
by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------ ------------------
<S> <C> <C>
/s/ DR. RAYMOND E. JAEGER Chairman of the Board of February 10, 1997
........................................ Directors (principal
DR. RAYMOND E. JAEGER executive officer)
/s/ GLENN E. MOORE President, Chief Executive February 10, 1997
........................................ Officer and Director
GLENN E. MOORE
/s/ BRUCE A. CANNON Senior Vice President, Chief February 10, 1997
........................................ Financial Officer,
BRUCE A. CANNON Secretary, Treasurer and
Director (principal
financial officer and
principal accounting
officer)
* Senior Vice President -- February 10, 1997
........................................ Technology and Director
JOHN E. CHAPMAN
/s/ IRA S. NORDLICHT Director February 10, 1997
........................................
IRA S. NORDLICHT
* Director February 10, 1997
........................................
DR. PAUL D. LAZAY
* Director February 10, 1997
........................................
RICHARD M. DONOFRIO
Director
........................................
DR. LILY K. LAI
</TABLE>
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* By Bruce A. Cannon as attorney-in-fact
II-5
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION
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<S> <C>
5.1 Opinion of Hackmyer & Nordlicht.
10.105 Cross-Indemnity Agreement between SpecTran Corporation and Allen & Company
Incorporated.
23.2 Consent of Hackmyer & Nordlicht. (Included in the opinion of counsel set forth as
Exhibit 5.1)
</TABLE>
<PAGE> 1
EXHIBIT 5.1
HACKMYER & NORDLICHT
COUNSELLORS AT LAW
OLYMPIC TOWER
645 FIFTH AVENUE
NEW YORK, N.Y. 10022
OF COUNSEL TELEPHONE (212) 421-6500
ARNOLD A. HACKMYER FAX (212) 421-0499
February 10, 1997
SpecTran Corporation
50 Hall Road
Sturbridge, MA 01566
Ladies and Gentleman:
This opinion is furnished to you in connection with a registration
statement on Form S-3 (the "Registration Statement"), filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, for the registration of 2,070,000 shares of Common Stock, $0.10 per
value (the "Shares"), of SpecTran Corporation, a Delaware Corporation (the
"Company"). The Shares are to be sold pursuant to an Underwriting Agreement
(the "Underwriting Agreement") to be entered into among the Company, the
Selling Stockholder named in Schedule B to the Underwriting Agreement (the
"Selling Stockholder"), and Tucker Anthony Incorporated and Raymond James &
Associates, Inc., as representatives of the several underwriters named in
Schedule A to the Underwriting Agreement.
We have acted as counsel for the Company in connection with the sale by
the Company and the Selling Stockholder of the Shares. For purposes of our
opinion, we have examined and relied upon such documents, records, certificates
and other instruments as we have deemed necessary.
We express no opinion as to the applicability of, compliance with or
effect of federal law or the law of any jurisdiction other than the General
Corporation Law of the State of Delaware.
Based upon the foregoing, we are of the opinion that (i) the Shares
have been duly authorized, (ii) when issued by the Company, upon the surrender
by the Selling Stockholder of its warrant to purchase 350,000 shares and the
payment by the Selling Stockholder of $700,000, the Shares being sold by the
Selling Stockholder will have been validly issued and will be fully paid and
nonassessable and (iii) when issued and sold by the Company in accordance with
the terms of the Underwriting Agreement, the Shares
<PAGE> 2
being sold by the Company will have been validly issued and will be fully paid
and non-assessable.
We hereby consent to the filing of this opinion as part of the
Registration Statement and to the use of our name therein and in the related
prospectus under the caption "Legal Matters."
This opinion is to be used only in connection with the offer and sale
of the Shares while the Registration Statement is in effect.
Very Truly Yours,
/s/ Hackmyer & Nordlicht
Hackmyer & Nordlicht
<PAGE> 1
EXHIBIT 10.105
CROSS-INDEMNITY AGREEMENT
THIS CROSS-INDEMNITY AGREEMENT is made as of the 10th day of February,
1997, by and between SpecTran Corporation (the "Company") and Allen & Company
Incorporated (the "Selling Securityholder").
WHEREAS, the Company has filed a registration statement (Registration
No. 333-19449) with the Securities and Exchange Commission (the "Registration
Statement") pursuant to which the Company is registering shares of its Common
Stock (the "Shares"), including shares underlying certain warrants currently
held by the Selling Securityholder, which Shares will be sold pursuant to a
firm commitment public offering, and
WHEREAS, the Company and the Selling Securityholder desire to enter
into an appropriate cross-indemnity agreement respecting the registration and
sale of the shares;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless the Selling Securityholder against any losses,
claims, damages or liabilities to which the Selling Securityholder may become
subject, under the Securities Act of 1933 (the "Act") or otherwise,
specifically including but not limited to losses, claims, damages or
liabilities related to negligence on the part of the Selling Securityholder,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any breach of any representation,
warranty, agreement or covenant of the Company herein contained or any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any prospectus or preliminary prospectus relating to the
Registration Statement, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading; and
agrees to reimburse the Selling Securityholder for any legal or other expense
reasonably incurred by it in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement, such prospectus or preliminary prospectus, or any such
amendment or supplement, in reliance upon and in strict conformity with written
information furnished with respect to the Selling Securityholder expressly for
use in the Registration Statement, such prospectus or preliminary prospectus or
any such amendment or supplement.
The indemnity agreement in this paragraph 1 shall extend upon the same
terms and conditions to, and shall inure to the benefit of each person, if any,
who controls the Selling Securityholder within the meaning of the Act. This
indemnity agreement shall be in addition to any liabilities which the Company
may otherwise have.
<PAGE> 2
2. INDEMNIFICATION BY THE SELLING SECURITYHOLDER. The Selling
Securityholder agrees to indemnify and hold harmless the Company to the same
extent as the foregoing indemnity from the Company to the Selling
Securityholder but only with respect to statements or omissions, if any, made
in the Registration Statement, any prospectus or preliminary prospectus
contained in the Registration Statement or any amendment or supplement thereto,
made in reliance upon, and in strict conformity with, written information
furnished with respect to the Selling Securityholder by the Selling
Securityholder expressly for use in the Registration Statement, such prospectus
or preliminary prospectus or any such amendment or supplement.
The indemnity agreement in this paragraph 2 shall extend upon the same
terms and conditions to, and shall inure to the benefit of, each officer and
director of the Company who has signed the Registration Statement and each
person, if any, who controls the Company within the meaning of the Act. This
indemnity agreement shall be in addition to any liabilities which the Selling
Securityholder may otherwise have.
3. INDEMNIFICATION PROCEDURE. Promptly after receipt by an indemnified
party under this Agreement of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Agreement, notify the indemnifying party in
writing of the commencement thereof but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party under this Agreement (except to the extent that the
omissions of such notice causes actual prejudice to the indemnifying party),
or otherwise than under this Agreement. In case any such action is brought
against any indemnified party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified parties and the indemnifying party
and counsel for the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel reasonably satisfactory to the indemnifying party or parties to assume
such legal defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to assume
the defense of such action and approval by the indemnified party of counsel,
the indemnifying party will not be liable to such indemnified party under this
Agreement for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel approved by the indemnifying party, representing all the
indemnified parties under paragraph 1 or 2 hereof, as the case may be, who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action, or
(iii) the indemnifying party has authorized the employment of counsel for the
<PAGE> 3
indemnified party at the expense of the indemnifying party. In no event shall
any indemnifying party be liable in respect of any amounts paid in settlement
of any action unless the indemnifying party shall have approved the terms of
such settlement; provided, however, that such consent shall not be unreasonably
withheld.
4. CONTRIBUTION. In order to provide for just and equitable
contribution in any action in which a claim for indemnification is made
pursuant to this Agreement but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Agreement provides for indemnification in such case, all the parties
hereto shall contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such
proportion so that the Selling Securityholder is responsible for the portion
represented by the percentage that the gross proceeds to the Selling
Securityholder of the securities sold by the Selling Securityholder in the
public offering bears to the gross proceeds to the Selling Securityholder and
the Company of all of the securities sold in the offering, and the Company is
responsible for the remaining portion, provided, however, that (i) the Selling
Securityholder shall not be required to contribute any amount in excess of the
gross proceeds received by the Selling Securityholder in respect of securities
sold by the Selling Securityholder in the offering, and (ii) no person guilty
of a fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to a contribution from any person who is not guilty of
such fraudulent misrepresentation.
5. ACKNOWLEDGEMENT. The parties to this Agreement hereby acknowledge
that they are sophisticated business persons who were represented by counsel
during the negotiations regarding the provisions hereof including without
limitation the provisions of this Agreement, and are fully informed regarding
such provisions. They further acknowledge that the provisions of the Agreement
fairly allocate the risks in light of the ability of the parties to assure that
adequate disclosure is made in the Registration Statement and prospectus as
required by the Act and the Securities Exchange Act of 1934. The parties are
advised that federal or state public policy, as interpreted by the courts in
certain jurisdictions, may be contrary to certain of the provisions of this
Agreement, and the parties hereto hereby expressly waive and relinquish any
right or ability to assert such public policy as a defense to a claim under this
Agreement and further agree not to attempt to assert any such defense.
6. MISCELLANEOUS.
(a) NOTICES. All notices and communications hereunder may be mailed
or transmitted by any standard form of telecommunications and, except as herein
otherwise specifically provided, shall be in writing and shall be deemed to
have been duly given when delivered to a notice party hereto at the address
specified herein or at the address subsequently communicated in writing to the
notice parties. Notices sent by facsimile transmission shall be effective when
transmitted provided that a written confirmation of receipt is provided.
Notices to the Company shall be directed to SpecTran Corporation, 50 Hall Road,
Sturbridge, Massachusetts 01566, Attention Raymond E. Jaeger, Chairman, with a
copy to Hackmyer &
<PAGE> 4
Nordlicht, 645 Fifth Avenue, 11th Floor, New York, New York 10022, Attention
Ira S. Nordlicht, Esq. Notices to the Selling Securityholder shall be directed
to Allen & Company Incorporated, 711 Fifth Avenue, New York, New York 10022,
Attention: General Counsel. In each case a notice party may change its address
for notice hereunder by a written communication to the other notice parties.
(b) PARTIES. This Agreement shall be binding upon the Selling
Securityholder, the Company and their respective successors, legal
representatives and assigns. This Agreement shall inure solely to the benefit of
the Selling Securityholder, the Company and the controlling persons, directors
and officers referred to herein, and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to
have any legal or equitable right, remedy or claims under or in respect of or by
virtue of this Agreement or any provisions herein contained. No purchaser of
Shares in the offering shall be deemed to be a successor by reason merely of
such purchase.
(c) CONSTRUCTION. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
WITHOUT GIVING EFFECT TO THE CHOICE OF LAW OR CONFLICT OF LAWS PRINCIPLES.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
taken together shall be deemed to be one and the same instrument.
(e) ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto in connection with the subject matter hereof and
supersede all prior agreements, written or oral, with respect to such subject
matter.
(f) AMENDMENT. This Agreement may not be amended, modified or
altered without the written agreement of the Company and the Selling
Securityholder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SPECTRAN CORPORATION
By: /s/ R.E. Jaeger
-------------------------
Name: R.E. Jaeger
Title: Chairman
ALLEN & COMPANY INCORPORATED
By: /s/ William F. Leimkuhler
---------------------------
Name: William F. Leimkuhler
Title: Vice President &
General Counsel
