SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) June 30, 1999
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SpecTran Corporation
(Exact name of registrant as specified in its charter)
Delaware 0-12489 04-2729372
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(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
50 Hall Road, Sturbridge, MA 01566
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (508) 347-2261
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N/A
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets
On June 30, 1999, Registrant's wholly-owned subsidiary, Applied
Photonic Devices, Inc. ("APD"), sold its fifty percent interest in General
Photonics, LLC, ("GP") to BICC General Cable Industries, Inc., ("BGC"). BGC
(formerly known as General Cable Industries, Inc.) and APD formed GP in 1996 as
a joint venture, with each party having a fifty percent interest in the venture.
The purchase price paid by BGC for APD's interest in GP was $2,367,200 subject
to (i) upward adjustment in an amount equal to fifty percent of any income
realized by GP for the month of June 1999 or (ii) downward adjustment in an
amount equal to fifty percent of any loss realized by GP during the month of
June 1999. The $2,367,200 purchase price was determined through negotiations
between the parties.
As part of the transaction, Registrant and its affiliates have
agreed that for a period of 18 months commencing June 30, 1999, they will not
compete against the business presently conducted by GP in the United States,
Canada and Mexico, with certain exceptions.
Also on June 30, 1999, BGC caused GP to place an order with
Registrant's wholly-owned subsidiary, SpecTran Communication Fiber Technologies,
Inc. for 30,399 kilometers of optical fiber.
Item 7. Financial Statements and Exhibits
(c) Exhibits.
2.1 Agreement between BICC General Cable Industries, Inc., a
Delaware corporation, Applied Photonic Devices, Inc., a Delaware corporation,
General Photonics, LLC, a Delaware limited liability company, SpecTran
Communication Fiber Technologies, Inc., a Delaware corporation, SpecTran
Corporation, a Delaware corporation and General Cable Corporation, a Delaware
corporation, dated June 30, 19991.
1 Schedules A, B and C to Exhibit 2.1 have been omitted. Schedule A contains a
list of other agreements to which the parties to Exhibit 2.1 were also parties
to, Schedule B contains a list of optical fiber products to be purchased from
SpecTran Communication Fiber Technologies, Inc. by GP and Schedule C contains
the tax position APD and BGC have agreed to take with respect to the purchase
price of APD's interest in GP. The Company undertakes to furnish supplementally
a copy of any of the foregoing schedules to the Securities and Exchange
Commission upon request.
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SpecTran Corporation
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(Registrant)
Date: July 13, 1999
/s/ Charles B. Harrison
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Charles B. Harrison, President and
Chief Executive Officer
<PAGE>
EXHIBIT 2.1
AGREEMENT
This Agreement is dated June 30, 1999 and is among BICC General Cable
Industries, Inc., a Delaware corporation ("BGC"), Applied Photonic Devices,
Inc., a Delaware corporation ("APD"), General Photonics, LLC, a Delaware limited
liability company ("GP"), SpecTran Communication Fiber Technologies, Inc., a
Delaware corporation ("SCFT"), SpecTran Corporation, a Delaware corporation
("SpecTran"), and General Cable Corporation, a Delaware corporation ("GCC").
WHEREAS, the parties hereto are parties to various agreements related
to the formation and operations of GP as set forth on Schedule A hereto (the
"Joint Venture Agreements");
WHEREAS, BGC and APD each own a fifty percent membership interest in GP;
WHEREAS, BGC wishes to purchase all of APD's membership interest in GP
(the "APD Interest") and APD wishes to sell the APD Interest to BGC; and
WHEREAS, the parties wish to terminate the Joint Venture Agreements and
enter into the arrangements set forth in this Agreement;
NOW THEREFORE, in consideration of the premises and mutual promises set
forth herein, the parties agree as follows:
1. Certain Definitions.
(a) "Affiliate" shall mean any Person which controls, is owned
by or under common control with, the specified other Person as evidenced by
ownership of or the power to vote a majority or more of the voting stock or
other evidence of ownership of such other Person or the ability to elect or
control the vote of the majority of the board of directors or other governing
body of such other Person.
(b) "Business" shall mean
(i) the development, manufacture, and marketing of
optical fiber cables for open architecture networking applications
(i) intra-building and (ii) inter-building in a customer campus setting in the
Territory;
(ii) manufacturing and marketing of (a)
OEM-specified/proprietary and/or branded optical fiber cables or
connectorized optical fiber cable assemblies used to interconnect those OEM
components, subsystem or systems, (b) optical fiber cables used to monitor or
control manufacturing equipment or processes and (c) certain projects (e.g., New
York Transit Authority) in accordance with guidelines previously established by
Super-Majority Approval of the Managers of GP.
<PAGE>
The Business of GP shall not include anything except as set forth in
(i) and (ii) above and excludes, for example, manufacturing and marketing of:
(a) uncabled fiber; (b) tactical military cables; (c) cables for geophysical
systems and exploration equipment; (d) cables for trains, subways and trams; (e)
cables for aerospace systems and platforms; (f) cables for medical devices,
instruments and systems; or (g) active or passive assemblies of any type (except
that some agreed amount of GP's revenues may be derived from the sale of the
pre-connectorized cables and installation accessories including, but not limited
to splitters, breakout kits and cable pulling devices as were manufactured by
APD prior to December 23, 1996 having no added active or other passive devices,
if requested by bulk cable manufacturers.
(c) "Business Plan" shall mean the annual plan specifying the
scope and operation of the Business of GP, including its mission, financial and
profitability goals, marketing and sales strategy, capital and borrowing needs,
manufacturing operations, and other relevant matters, including a distribution
policy.
(d) "Closing" has the meaning set forth in Section 4, below.
(e) "Eighteen Month Period" has the meaning set forth in
Section 6(a), below.
(f) "Fiber Purchase" has the meaning set forth in Section 8,
below.
(g) "Force Majeure " shall mean if the performance of this
Agreement or of any obligation hereunder, other than the payment of any money,
is prevented, restricted or interfered with by reason of any act of God, civil
disorder, strike, governmental act, war, general unavailability of raw materials
in the market beyond the control of a party, or, without limiting the foregoing,
by any other cause not within the control of a party hereto, then the party so
affected, upon giving prompt notice to the other party, shall be excused from
such performance to the extent of such prevention, restriction or interference;
provided that the party so affected shall use its best reasonable efforts to
avoid or remove such causes for nonperformance and shall continue performance
hereunder with the utmost dispatch whenever such cases are removed.
(h) "June Results" shall have the meaning set forth in Section
3, below.
(i) "Person" means any individual, partnership, corporation,
trust, limited liability company or other entity.
(j) "Products" shall mean optical fiber cables manufactured
and sold by GP as of the date hereof.
(k) "Territory" means the North American Free Trade Area as
presently constituted (United States, Canada, Mexico).
2. Repayment of Loan. Immediately prior to the Closing, GP will repay
U.S.$325,000 lent to it by APD by wire transfer of immediately available funds
to an account to be designated by APD.
<PAGE>
3. Purchase and Sale of Interest. At the Closing, APD will sell to BGC
and BGC will buy from APD the APD Interest for the sum of U.S. $2,367,200,
subject to (i) upward adjustment in an amount equal to fifty percent of any
income realized by GP for the month of June 1999 or (ii) downward adjustment in
an amount equal to fifty percent of any loss realized by GP during the month of
June 1999 (the "Purchase Price"). The parties agree that only normal month end
adjustments will be applied to GP's June 1999 financial results (the "June
Results") and that the Fiber Purchase that will be made after the Closing but
still on June 30, 1999 will not be considered in calculating GP's June 1999
financial results.
4. Closing. The closing (the "Closing") for the sale and purchase of
the APD Interest will be June 30, 1999, noon, Eastern Standard Time. At the
Closing, the Class A Managers of GP will submit resignations to GP.
5. Payment. At the Closing, BGC will pay to APD the sum of $2,367,200
by wire transfer of immediately available funds to an account to be designated
by APD. Any amounts payable pursuant to Section 3, above, resulting from an
adjustment to the Purchase Price will be paid by APD to BGC, if GP realizes a
loss for June 1999, or by BGC to APD, if GP realizes a gain for June 1999, as
the case may be, within five days after the date that GP has determined its June
Results, but in no event later than July 20, 1999. GP will notify APD and BGC
promptly after determining the June Results. If BGC or APD disagrees with GP's
determination of the June Results, any adjustment necessary will be paid within
five days after BGC and APD reach agreement on the June Results. If BGC and APD
cannot reach agreement by July 31, 1999, Deloitte & Touche, GP's present
auditors, will determine the June Results in accordance with this Agreement,
which determination shall be binding on BGC and APD. Any adjustment necessary
based on Deloitte & Touche's determination of the June Results will be paid by
the appropriate party within five days after Deloitte & Touche advises the
parties of its determination.
6. Non-Competition.
(a) For eighteen months from the date of this Agreement (the
"Eighteen Month Period") SpecTran will not and will cause its Affiliates to not,
compete with GP or its successor in the Business in the Territory; provided,
however, that nothing herein is intended to prevent any Person which has an
existing business that is competitive with GP or its successor from continuing
such business in the event such Person acquires SpecTran or an Affiliate thereof
which is subject to this non-competition provision and, further, that during the
Eighteen Month Period, if an Affiliate of SpecTran ceases to be an Affiliate,
then the provisions hereof relating to Affiliates will cease to apply to such
entity.
(b) The parties also agree that notwithstanding anything in
this Agreement to the contrary:
(i) it shall not be deemed a violation of this Agreement for
SpecTran's Affiliate, SpecTran Specialty Optics Company, to manufacture and
market (i) specified, proprietary and/or branded optical cables or
<PAGE>
connectorized optical fiber cable assemblies used to interconnect
components, subsystems or systems, LANs and I/O device networks (provided,
however, that SSOC will not compete with GP with respect to the private
label business for standard open architecture customer premise systems
currently conducted by GP), (ii) optical fiber cables used to monitor or
control manufacturing equipment or processes and (iii) specific WAN,
specialized communication jumpers and cables, and remote sensing cables
(e.g., New York Transit Authority).
(ii) during the Eighteen Month Period, APD, at its
election, may purchase from GP or its successor, and
BGC shall cause GP or its successor to sell to APD the greater of (i) fifty
percent (50%) of the annual planned manufacturing capacity for the Products of
GP for calendar year 1998 as defined in the Business Plan or (ii) fifty percent
(50%) of the actual amount of GP's sales of Products in 1998 multiplied by the
percentage amount of associated market growth in respect to those product sales
as determined using a one year trailing indicator mutually agreed upon by APD
and BGC; and
(iii) during The Eighteen Month Period, APD may serve
the Business in the Territory only with products
purchased from GP or its successor, unless for any reason (whether or not a
Force Majeure Event has occurred) GP or its successor is unable to provide such
Products in the quantities required, or GP or its successor elects not to or
fails to do so, in which case APD will be permitted to purchase such products
from third persons until GP or its successor can demonstrate to APD's reasonable
satisfaction that it is able and willing to provide such products in the
quantities required, but only up to the maximum amount it would have otherwise
purchased from GP or its successor plus such additional amounts that APD and BGC
reasonably expect that GP or its successor will not be able to provide. Prices
to be charged to APD for sales of Products under clauses (ii) and (iii) of this
Section 6(b) will be established using the same or a similar mechanism to
establish the prices at which GP had been selling Products to BGC prior to the
date of this Agreement.
(c) The parties hereto, on behalf of themselves and their
respective Affiliates, each agrees and acknowledges that a breach by any of the
parties hereto or any of their respective Affiliates of any covenant or
provision in this Section 6 would result in immediate and irreparable damages to
the non-breaching parties that could not adequately be compensated for by
monetary award. Accordingly, the parties agree that, in addition to all other
remedies available to them, the non-breaching parties shall be entitled to the
immediate remedy of a restraining order, interim injunction or other form of
injunctive relief as may be decreed or issued by any court of competent
jurisdiction to restrain or enjoin the breaching party from breaching or
threatening to breach any such covenant or provision, and the breaching party
will not raise as a defense that the non-breaching parties have an adequate
remedy at law.
7. Certain Employee Responsibility. APD hereby agrees to employ and/or
be responsible for any termination payments and obligations, including severance
amounts due to Crawford L. Cutts, presently the President of GP.
8. Fiber Sale. Immediately after the Closing, but still on June 30,
1999, SCFT agrees to sell and GP or its successor agrees to buy the quantities
and types of optical fiber described on the attached Schedule B to this
Agreement at the prices set forth and upon the terms and conditions described
<PAGE>
therein (the "Fiber Purchase"), subject to the second sentence of Section 3
hereof.
9. Agreements of No Further Force and Effect. The parties agree that
upon consummation of the Closing, the Joint Venture Agreements will have no
further force and effect and will be deemed terminated. Without in any way
limiting the generality of the foregoing, subject to the consummation of the
Closing, each party hereto hereby knowingly and voluntarily waives, releases and
discharges each of the other parties hereto, their respective predecessors,
successors, subsidiaries and Affiliates, and their respective employees, agents,
officers, directors and managers (individually referred to as a "Releasee" and
collectively referred to as "Releasees") from any and all claims, liabilities,
demands, suits and causes of action, whether fixed or contingent, direct or
indirect, of any kind or nature, which such party may now or hereafter have or
now or hereafter claim to have against any Releasee related in any way to the
Joint Venture Agreements, including but not limited to the execution,
performance and termination thereof. Notwithstanding the foregoing, nothing
herein is intended as a waiver by SCFT of its right to receive payment for sales
of optical fiber to GP prior to the date hereof. Payment of such amounts will be
made by GP when due in the ordinary course of business.
10. Representations and Warranties of BGC and GCC. BGC and GCC hereby
represent and warrant to SpecTran, APD, SCFT and GP as follows:
(a) Each of BGC and GCC is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
with all requisite corporate power and authority to execute this Agreement and
to consummate the transactions contemplated hereby.
(b) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action by each of BGC and GCC.
This Agreement constitutes a valid and binding obligation of BGC and GCC, as
applicable, enforceable against each of them in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization or other laws
affecting creditor's rights generally, and subject to judicial discretion in the
enforcement of equitable remedies.
(c) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby, do not and will
not (i) violate or conflict with the Certificate of Incorporation or By-laws of
BGC or GCC; (b) conflict with or result in the breach or termination of, or
constitute a default or make effective a right of cancellation, acceleration or
first refusal under (i) any material agreement, instrument, contract or
commitment to which BGC or GCC is a party or by which any of their respective
properties is bound; (ii) constitute a violation in any material respect of any
law, statute, ordinance, order or regulation applicable to BGC or GCC or any of
their respective properties; or (iii) result in the creation of any lien,
encumbrance or security interest upon any property of BGC or GCC. No consent,
approval or authorization of, or designation, declaration or filing with, any
governmental agency or body, is required on the party of BGC or GCC in
connection with the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.
<PAGE>
(d) There is no litigation, proceeding, government
investigation or claim pending, or to BGC's or GCC's knowledge2, threatened,
against BGC or GCC relating to this Agreement or the transactions contemplated
hereby, not does BGC or GCC know of any basis for any such litigation,
proceeding, government investigation or claim.
(e) Neither BGC nor GCC has violated any statute, order, rule
or regulations which would prevent the consummation of the transactions
contemplated herein.
11. Representations and Warranties of APD, SpecTran and SCFT. APD,
SpecTran and SCFT hereby represent and warrant to BGC, GCC and GP as follows:
(a) Each of APD, SpecTran and SCFT is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware with all requisite corporate power and authority to execute this
Agreement and to consummate the transactions contemplated hereby.
(b) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action by each of APD, SpecTran
and SCFT. This Agreement constitutes a valid and binding obligation of APD,
SpecTran and SCFT, as applicable, enforceable against each of them in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization or other laws affecting creditor's rights generally, and subject
to judicial discretion in the enforcement of equitable remedies.
(c) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby, do not and will
not (i) violate or conflict with the Certificate of Incorporation or By-laws of
APD, SpecTran or SCFT; (b) conflict with or result in the breach or termination
of, or constitute a default or make effective a right of cancellation,
acceleration or first refusal under (i) any material agreement, instrument,
contract or commitment to which APD, SpecTran or SCFT is a party or by which any
of their respective properties is bound; (ii) constitute a violation in any
material respect of any law, statute, ordinance, order or regulation applicable
to APD, SpecTran or SCFT or any of their respective properties; or (iii) result
in the creation of any lien, encumbrance or security interest upon any property
of APD, SpecTran or SCFT. No consent, approval or authorization of, or
designation, declaration or filing with, any governmental agency or body, is
required on the party of APD, SpecTran or SCFT in connection with the execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(d) There is no litigation, proceeding, government
investigation or claim pending, or to APD's, SpecTran's or SCFT's knowledge,
threatened, against APD, SpecTran or SCFT relating to this Agreement or the
transactions contemplated hereby, not does APD, SpecTran or SCFT know of any
basis for any such litigation, proceeding, government investigation or claim.
2 For the purposes of this Agreement, references to a
matter being to a party's "knowledge", means the actual knowledge of the party's
officers, directors and managers (as the case may be) without having undertaken
any investigation or inquiry.
<PAGE>
(e) Neither APD, SpecTran nor SCFT has violated any statute,
order, rule or regulations which would prevent the consummation of the
transactions contemplated herein.
12. Representations and Warranties of GP. GP hereby represents and
warrants to SpecTran, APD, SCFT, BGC and GCC as follows:
(a) GP is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware with all
requisite power and authority to execute this Agreement and to consummate the
transactions contemplated hereby.
(b) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary action by the managers and members of GP.
This Agreement constitutes a valid and binding obligation of GP, enforceable
against GP in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization or other laws affecting creditor's rights generally,
and subject to judicial discretion in the enforcement of equitable remedies.
(c) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby, do not and will
not (i) violate or conflict with Certificate of Formation or Limited Liability
Company Agreement of GP; (b) conflict with or result in the breach or
termination of, or constitute a default or make effective a right of
cancellation, acceleration or first refusal under (i) any material agreement,
instrument, contract or commitment to which GP is a party or by which any of its
properties is bound; (ii) constitute a violation in any material respect of any
law, statute, ordinance, order or regulation applicable to GP or any of its
properties; or (iii) result in the creation of any lien, encumbrance or security
interest upon any property of GP. No consent, approval or authorization of, or
designation, declaration or filing with, any governmental agency or body, is
required on the party of GP in connection with the execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby.
(d) There is no litigation, proceeding, government
investigation or claim pending, or to GP's knowledge, threatened, against GP
relating to this Agreement or the transactions contemplated hereby, not does GP
know of any basis for any such litigation, proceeding, government investigation
or claim.
(e) GP has not violated any statute, order, rule or
regulations which would prevent the consummation of the transactions
contemplated herein.
13. Records Retention. After the Closing, GP will maintain all books,
records, files and other documents relating to its business in the same manner
as heretofore done and in any event in a safe and secure location consistent
with prudent business practices. GP will permit APD and its representatives
access to all such materials at reasonable times upon reasonable notice to the
extent reasonably necessary for APD and its Affiliates to prepare financial
statements and tax returns and to respond to any inquiry, subpoena or other
legal process relating to APD's investment in GP and/or the sale thereof as
contemplated in this Agreement.
<PAGE>
14. Tax Returns. BGC and APD agree that the underlying value of
partnership assets attributable to APD's interest in GP is as reflected in
Schedule C hereto. Neither BGC nor APD will file tax returns or take tax
positions inconsistent with the agreed values reflected in Schedule C.
15. Miscellaneous.
(a) Survival. All agreements and obligations of the parties
hereunder which by virtue of their nature, require performance after the
execution of this Agreement, shall survive the execution and delivery of this
Agreement and the Closing.
(b) Entire Agreement. This Agreement, including the Schedules
referred to herein, constitutes the entire agreement between the parties
pertaining to the subject matter hereof, and supersedes all other prior
agreements and understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof. There are no other
representations or warranties, whether written or oral, among any of the parties
in connection with the subject matter hereof, except as expressly set forth
herein.
(c) Amendment. This Agreement may not be amended, modified or
supplemented except in a writing signed by each of the parties.
(d) Waiver. No waiver by any party of any default or breach of
any term, condition or covenant of this Agreement shall be deemed to be a waiver
of any subsequent default or breach of the same or any other term, condition or
covenant contained herein, nor shall it be effective unless in writing and
signed by the party to be charged therewith. The failure of any party hereto to
enforce at any time or for any period of time any provision hereof in accordance
with its terms shall not be construed to be a waiver of such provision or of the
right of such party thereafter to enforce any provision hereof.
(e) Assignments; Parties in Interest. Neither this Agreement
nor any of the rights, interests or obligations hereunder may be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties hereto who are not Affiliates of the
assigning party, except that the rights, interests, and obligations of any party
hereto may be assigned to any party which acquires all or substantially all of
the assets of a party or with which a party is merged or consolidated. Subject
to the preceding sentence, this Agreement shall be binding upon and inure solely
to the benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any person not a party hereto any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement, except as otherwise provided herein.
<PAGE>
(f) Notices. All notices or other communications under this
Agreement shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by facsimile (with
confirmation of receipt), or by registered or certified mail, postage prepaid,
return receipt requested, addressed as follows (notice by e-mail will not be
considered a notice or communication under this Agreement):
If to SpecTran, APD
or SCFT: SpecTran Corporation
50 Hall Road
Sturbridge, Massachusetts 01566
Attention: Charles B. Harrison,
President and Chief Executive Officer
Facsimile: (508) 347-8626
With a copy to: Nordlicht & Hand
Olympic Tower
645 Fifth Avenue
New York, New York
Attention: Ira S. Nordlicht, Esq.
Facsimile: (212) 421-0499
If to GCC: General Cable Corporation
4 Tesseneeer Drive
Highland Heights, Kentucky 41076
Attention: Robert J. Siverd
Facsimile: (606) 572-8444
If to BGC: BICC General Cable Industries, Inc.
4 Tesseneeer Drive
Highland Heights, Kentucky 41076
Attention: Robert J. Siverd
Facsimile: (606) 572-8444
If to GP: General Photonics, LLC
300 Lake Road
Dayville, Connecticut 06241
Attention: President
Facsimile: (860) 774-1227
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section.
(g) Further Assurances. From time to time after the execution
and delivery of this Agreement, upon the reasonable request of any party hereto,
the other party or parties hereto shall execute and deliver or cause to be
executed and delivered such further instruments, and take such further action,
as the requesting party may reasonably request in order to effectuate fully the
purposes, terms and conditions of this Agreement.
<PAGE>
(h) Fees and Expenses. All reasonable fees and expenses
incurred in connection with this Agreement and the transactions contemplated by
this Agreement (including legal fees) shall be paid by the party that incurred
such fees and expenses.
(i) Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
(j) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
taken together shall constitute a single agreement.
(k) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economics or legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon determination that any term or other
provision hereof is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
(l) Public Announcements. No party to this Agreement will make
any public announcement regarding the execution hereof or of the transactions
contemplated herein, except as may otherwise be required by law, and except that
SpecTran and GCC will issue a press release announcing the sale and purchase of
SpecTran's interest in GP. The parties will cooperate regarding the timing of
and nature of any such public announcement and will provide copies of such press
releases to each other prior to the public dissemination thereof.
(m) Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Delaware (without giving effect to the
provisions thereof relating to conflicts of law). The parties hereby irrevocably
consent to the non-exclusive jurisdiction of the State and Federal Courts
situated in the Southern District of New York over any dispute arising out of
this Agreement and will not raise as a defense to such jurisdiction the defense
of forum non conveniens.
THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written:
GENERAL CABLE CORPORATION
By: /s/ Robert J. Siverd
Name: Robert J. Siverd
Title: Executive Vice President
BICC GENERAL CABLE INDUSTRIES, INC.
By: /s/ Robert J. Siverd
Name: Robert J. Siverd
Title: Executive Vice President
SPECTRAN CORPORATION
By: /s/ Charles B. Harrison
Charles B. Harrison
President and Chief Executive Officer
APPLIED PHOTONIC DEVICES, INC.
By: /s/ Charles B. Harrison
Charles B. Harrison
President and Chief Executive Officer
SPECTRAN COMMUNICATION FIBER
TECHNOLOGIES, INC.
By: /s/ Charles B. Harrison
Charles B. Harrison
Chief Executive Officer
<PAGE>
GENERAL PHOTONICS, LLC
By: /s/ Crawford L. Cutts
Crawford L. Cutts
President
