<PAGE>
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 15, 1997
REGISTRATION NO. 333-32985
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
GENERAL CABLE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C> <C>
DELAWARE 3357 06-1398235
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
4 TESSENEER DRIVE
HIGHLAND HEIGHTS, KENTUCKY 41076
(606) 572-8000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
STEPHEN RABINOWITZ
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
GENERAL CABLE CORPORATION
4 TESSENEER DRIVE
HIGHLAND HEIGHTS, KENTUCKY 41076
(606) 572-8000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
ELLEN J. ODONER, ESQ. GEOFFREY E. LIEBMANN, ESQ.
WEIL, GOTSHAL & MANGES LLP CAHILL GORDON & REINDEL
767 FIFTH AVENUE 80 PINE STREET
NEW YORK, NEW YORK 10153 NEW YORK, NEW YORK 10005
(212) 310-8000 (212) 701-3000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
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, please 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, please 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. [ ]
------------------------
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.
________________________________________________________________________________
<PAGE>
<PAGE>
INTRODUCTORY NOTE
This Amendment No. 1 to Registration Statement No. 333-32985 is being filed
with the Securities and Exchange Commission in order to include Exhibits 1.1,
5.1 and 23.2 thereto. The Prospectus which forms a part of this Amendment No. 1
is identical to the Prospectus as filed with the Securities and Exchange
Commission on August 6, 1997, which Prospectus is not separately included in
this Amendment No. 1.
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an itemization of the expenses to be borne by the Company
in connection with the distribution of the securities being registered
hereunder. All such expenses (other than the registration and NASD fees) are
estimated.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............................... $ 44,229
NASD fee.......................................................................... 15,095
Legal fees and expenses........................................................... 100,000
Accounting fees................................................................... 35,000
Printing costs and expenses....................................................... 100,000
Miscellaneous..................................................................... 55,676
--------
Total........................................................................ $350,000
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Section 145 of the Delaware General Corporation Law (the 'DGCL')
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit, or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, or, with respect to any criminal action or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful.
Section 145 of the DGCL also provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee, or
agent of another corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon adjudication that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
II-1
<PAGE>
<PAGE>
Any such indemnification (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth above. Such determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding; or
(2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel
in a written opinion; or
(3) by the stockholders.
Section 145 of the DGCL permits a Delaware business corporation to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against such person and incurred by him in any such capacity,
or arising out of his status as such, whether or not the corporation would have
the power to indemnify such person.
(b) Article XIV of the Company's By-laws, as amended, provides that the
Company shall, to the fullest extent permitted under the DGCL or any other
applicable law, as may from time to time be in effect, indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that such person is or was a member of
the board of directors or an officer of the Company or controller of the
Company, or is or was serving at the request of the Company as a member of the
board of directors or an officer of another corporation, partnership, joint
venture, trust or other enterprise, against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding.
Article XIV also provides that expenses incurred by an officer or director or
controller of the Company in defending a civil or criminal action, suit or
proceeding shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director, officer or controller to repay such amount if it shall be
ultimately determined that he or she is not entitled to be indemnified as
authorized by the DGCL. Persons who are not officers, directors or the
controller of the Company and who are or were employees or agents of the
Company, or are or were serving at the request of the Company as employees or
agents of another corporation, partnership, joint venture, trust or other
enterprise, may be indemnified to the extent authorized at any time or from time
to time by the board of directors. The right to indemnification provided by
Article XIV of the Company's By-laws is not exclusive of any other rights to
which those indemnified may be entitled by law or otherwise, and shall continue
as to a person who has ceased to be a director, officer, controller, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such person.
(c) The Underwriting Agreement among the Underwriters, the Selling
Stockholder, Wassall and the Company relating to the Common Stock contain
provisions with respect to indemnification of directors and certain officers of
the Company by the Underwriters under certain circumstances.
(d) The directors and officers of the Company are covered by a directors'
and officers' insurance policy.
II-2
<PAGE>
<PAGE>
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
None.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -------------------------------------------------------------------------------------------------------
<S> <C>
*1.1 Form of Underwriting Agreement.
3.1 Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit 3.1 to the
Registration Statement on Form S-1 (File No. 333-22961) of the Company filed with the Commission on
March 7, 1997, as amended (the 'Initial S-1') and incorporated herein by reference).
3.2 Amended and Restated By-Laws of the Registrant (filed as Exhibit 3.2 to the Initial S-1 and
incorporated herein by reference).
4.1 Specimen Common Stock Certificate (filed as Exhibit 4.1 to the Initial S-1 and incorporated herein by
reference).
*5.1 Opinion of Weil, Gotshal & Manges LLP as to the legality of the Common Stock.
10.1 Stock and Note Purchase Agreement, dated as of May 5, 1994 (filed as Exhibit (c)(2) to the Schedule
14D-1 of Wassall PLC and the Registrant filed with the Commission on May 11, 1994 and incorporated
herein by reference).
10.2 Credit Agreement between the Registrant, Chase Manhattan Bank, as Administrative Agent, and the lenders
signatory thereto (filed as Exhibit 10.2 to the Initial S-1 and incorporated herein by reference).
10.3 General Cable Corporation 1997 Annual Incentive Plan (filed as Exhibit 10.3 to the Initial S-1 and
incorporated herein by reference).
10.4 General Cable Corporation 1997 Stock Incentive Plan (filed as Exhibit 10.4 to the Initial S-1 and
incorporated herein by reference).
10.5 Employment Agreement, dated May 13, 1997, between Stephen Rabinowitz and the Registrant (filed as
Exhibit 10.5 to the Initial S-1 and incorporated herein by reference).
10.6 Employment Agreement, dated May 13, 1997, between Gregory B. Kenny and the Registrant (filed as Exhibit
10.6 to the Initial S-1 and incorporated herein by reference).
10.7 Employment Agreement, dated May 13, 1997, between Christopher F. Virgulak and the Registrant (filed as
Exhibit 10.7 to the Initial S-1 and incorporated herein by reference).
10.8 Employment Agreement, dated May 13, 1997, between Robert J. Siverd and the Registrant (filed as Exhibit
10.8 to the Initial S-1 and incorporated herein by reference).
10.9 Change-in-Control Agreement, dated May 13, 1997, between Stephen Rabinowitz and the Registrant (filed
as Exhibit 10.9 to the Initial S-1 and incorporated herein by reference).
10.10 Change-in-Control Agreement, dated May 13, 1997, between Gregory B. Kenny and the Registrant (filed as
Exhibit 10.10 to the Initial S-1 and incorporated herein by reference).
10.11 Change-in-Control Agreement, dated May 13, 1997, between Christopher F. Virgulak and the Registrant
(filed as Exhibit 10.11 to the Initial S-1 and incorporated herein by reference).
10.12 Change-in-Control Agreement, dated May 13, 1997, between Robert J. Siverd and the Registrant (filed as
Exhibit 10.12 to the Initial S-1 and incorporated herein by reference).
10.13 Registration Rights Agreement, dated May 13, 1997, between Wassall Netherlands Cable B.V. and the
Registrant (filed as Exhibit 10.13 to the Initial S-1 and incorporated herein by reference).
10.14 Form of Intercompany Agreement among Wassall PLC, Wassall Netherlands Cable B.V. and the Registrant
(filed as Exhibit 10.14 to the Initial S-1 and incorporated herein by reference).
10.15 Stock Purchase Agreement, dated May 13, 1997, between Wassall PLC and General Cable Industries, Inc.
and the Registrant (filed as Exhibit 10.15 to the Initial S-1 and incorporated herein by reference).
**11.1 Statement re Computation of Per Share Earnings.
21.1 List of subsidiaries of the Registrant (filed as Exhibit 21.1 to the Initial S-1 and incorporated
herein by reference).
**23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1).
**24.1 Powers of Attorney.
**27.1 Financial Data Schedule.
</TABLE>
- ------------------
* Filed herewith.
** Previously filed.
II-3
<PAGE>
<PAGE>
(b) Financial Statement Schedule
The following financial statement schedule of the Company is filed
herewith:
<TABLE>
<CAPTION>
SCHEDULE DESCRIPTION
- --------- -----------------------------------------------------------------------------------------------------
<S> <C>
II. Valuation and Qualifying Accounts
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes that:
(1) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Exchange Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Exchange Act and will be governed by the final
adjudication of such issue.
(2) For purposes of determining any liability under the Securities Act, the
information omitted from the Prospectus filed as part of this Registration
Statement in reliance upon Rule 430A and contained in the Prospectus filed by
the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed part of the Registration Statement as of the time it was
declared effective.
(3) For the purpose of determining any liability under the Securities Act,
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.
(4) The undersigned registrant hereby undertakes to provide to the
Underwriters at the closing specified in the underwriting agreement certificates
in such denominations and registered in such names as required by the
Underwriters to permit prompt delivery to each purchaser.
II-4
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York on August 15, 1997.
GENERAL CABLE CORPORATION
By: /s/ STEPHEN RABINOWITZ**
...................................
STEPHEN RABINOWITZ
CHAIRMAN, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the Registration Statement has been signed by or on behalf of the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------- ---------------------------------------------- -------------------
<S> <C> <C>
/S/ STEPHEN RABINOWITZ** Chairman, President, Chief Executive Officer August 15, 1997
........................................ and Director (Principal Executive Officer)
(STEPHEN RABINOWITZ)
/S/ GREGORY B. KENNY** Executive Vice President, Chief Operating August 15, 1997
........................................ Officer and Director
(GREGORY B. KENNY)
/S/ KEVIN J. DOYLE* Director August 15, 1997
........................................
(KEVIN J. DOYLE)
/S/ DAVID A. ROPER* Director August 15, 1997
........................................
(DAVID A. ROPER)
/S/ CHRISTOPHER F. VIRGULAK** Chief Financial Officer (Principal Financial August 15, 1997
........................................ and Accounting Officer)
(CHRISTOPHER F. VIRGULAK)
*By: /s/ MARSHALL D. GRINGAUZ
........................................
MARSHALL D. GRINGAUZ
ATTORNEY-IN-FACT
**By: /s/ ROBERT J. SIVERD
........................................
ROBERT J. SIVERD
ATTORNEY-IN-FACT
</TABLE>
II-5
<PAGE>
<PAGE>
GENERAL CABLE CORPORATION
4,350,000 SHARES
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
, 1997
<PAGE>
<PAGE>
UNDERWRITING AGREEMENT
, 1997
DILLON, READ & CO. INC.
LAZARD FRERES & CO. LLC
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
c/o DILLON, READ & CO. INC.
535 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Wassall Netherlands Cable B.V., a Netherlands corporation (the
"Selling Stockholder"), proposes to sell to the Underwriters named in Schedule A
annexed hereto (the "Underwriters") an aggregate of 4,350,000 shares (the "Firm
Shares") of Common Stock, par value $.01 per share (the "Common Stock"), of
General Cable Corporation, a Delaware corporation (the "Company").
In addition, solely for purposes of covering over-allotments, the
Selling Stockholder proposes to grant to the Underwriters an option to purchase
from the Selling Stockholder up to an aggregate of 465,000 additional shares of
Common Stock (the "Additional Shares"). The Firm Shares and the Additional
Shares are hereinafter sometimes collectively referred to as the "Shares."
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (Registration No. 333-32985),
including a prospectus, relating to the Shares. The Company has furnished to the
Underwriters, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
Prospectus") relating to the Shares. Except as specified, the registration
statement as in effect at the time of execution of this Agreement or, if the
registration statement is not yet effective, as amended when it becomes
effective, including all financial schedules and exhibits thereto filed as a
part thereof, together with any registration statement filed pursuant to Rule
462(b) under the Act, and including any information contained in a prospectus
subsequently filed with the Commission pursuant to Rule 424(b) under the Act and
deemed to be part of such registration statements at the time of effectiveness
pursuant to Rule 430A under the Act, is herein called the "Registration
Statement," and the prospectus, in the form filed by the Company with the
Commission pursuant to Rule 424(b) under the Act (or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the time it became effective), is herein called the "Prospectus."
The Company, the Selling Stockholder and the Underwriters agree
as follows:
<PAGE>
<PAGE>
1. Sale and Purchase. The Selling Stockholder agrees to sell to
the several Underwriters and, upon the basis of the representations and
warranties and the other terms and conditions herein set forth, each of the
Underwriters, severally and not jointly, agrees to purchase from the Selling
Stockholder the respective number of Firm Shares set forth opposite the name of
such Underwriter in Schedule A hereto, at a purchase price of $ per Share. The
Underwriters may release the Firm Shares for public sale promptly after this
Agreement becomes effective. The Underwriters may from time to time increase or
decrease the public offering price after the initial public offering to such
extent as the Underwriters may determine.
In addition, the Selling Stockholder hereby grants to the several
Underwriters the option to purchase, and upon the basis of the representations
and warranties and the other terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Selling Stockholder all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the several
Underwriters to the Selling Stockholder for the Firm Shares. This option may be
exercised in whole or in part (but not more than once) on or before the
thirtieth day following the date hereof, by written notice to the Selling
Stockholder, with a copy to the Company. Any such notice shall set forth the
aggregate number of Additional Shares as to which the option is being exercised,
and the date and time when the Additional Shares are to be delivered (any such
date and time being herein referred to as the "additional time of purchase");
provided, however, that the additional time of purchase shall not occur earlier
than the time of purchase (as defined below) nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the eighth business day after the date on which the option shall have
been exercised. The number of Additional Shares to be sold to each Underwriter
at the additional time of purchase shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased at the
additional time of purchase as the respective number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A hereto bears to the total
number of Firm Shares (subject, in each case, to such adjustment as the
Underwriters may determine to eliminate fractional shares). As used herein,
"business day" shall mean a day on which the New York Stock Exchange is open for
trading.
2. Payment and Delivery. Payment of the purchase price for the
Firm Shares shall be made to the Selling Stockholder by wire transfer of
immediately available funds, at the office of Dillon, Read & Co. Inc. in New
York City, or at such other place as may be agreed to by the Underwriters, the
Company and the Selling Stockholder, against delivery of the certificates for
the Firm Shares to the Underwriters for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 9:00 A.M., New York
City time, on , 1997 (unless another time shall be agreed to by the
Underwriters, the Company and the Selling Stockholder or unless postponed in
accordance with the provisions of Section 9(e)). The time at which such payment
and delivery are actually made is hereinafter sometimes called the "time of
purchase." Certificates for the Firm Shares shall be delivered to the
Underwriters in definitive form in such names and in such denominations as the
Underwriters shall specify on the second business day preceding the time of
purchase. For the purpose of expediting the checking of the certificates for the
Firm Shares by the Underwriters, the Selling Stockholder and the Company agree
to make such certificates available to the Underwriters for such purpose at
least one full business day preceding the time of purchase.
-2-
<PAGE>
<PAGE>
Payment of the purchase price for the Additional Shares to be
purchased by the Underwriters shall be made at the additional time of purchase
in the same manner and at the same office as the payment for the Firm Shares
unless otherwise agreed to by the Underwriters and the Company. Certificates for
the Additional Shares shall be delivered to the Underwriters in definitive form
in such names and in such denominations as the Underwriters shall specify on the
second business day preceding the additional time of purchase. For the purpose
of expediting the checking of the certificates for such Additional Shares by the
Underwriters, the Selling Stockholder and the Company agree to make such
certificates available to the Underwriters for such purpose at least one full
business day preceding the additional time of purchase.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) Each Preliminary Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Act, complied as to form when so
filed in all material respects with the Act; when the Registration
Statement or any amendment or supplement thereto was or is declared
effective by the Commission (the "Effective Time"), at the time of
purchase and at the additional time of purchase, the Registration
Statement and the Prospectus, and any supplements or amendments thereto,
complied and will comply as to form in all material respects with the
provisions of the Act; and neither the Registration Statement nor any
supplement or amendment thereto, at any such time, contained or will
contain an untrue statement of a material fact or omitted or will omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and neither the Prospectus
nor any supplement or amendment thereto, at any such time, contained or
will contain an untrue statement of a material fact or omitted or will
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representation or warranty with respect to any
statement contained in the Registration Statement or the Prospectus in
reliance upon and in conformity with information concerning the
Underwriters furnished in writing by or on behalf of any Underwriter
through the Underwriters to the Company expressly for use in the
Registration Statement or the Prospectus and set forth in the third
paragraph of the section of the Registration Statement and the
Prospectus entitled "Underwriting."
(b) As of the date of this Agreement, the Company has and, as of
the time of purchase, the Company will have an authorized capitalization
as set forth under the column entitled "June 30, 1997" in the section of
the Registration Statement and the Prospectus entitled "Capitalization."
All of the issued and outstanding shares of capital stock of the Company
(including the Shares) have been duly authorized and validly issued, are
fully paid and nonassessable and are free of statutory and contractual
preemptive rights and are free and clear of any pledge, lien,
encumbrance, security interest or other claim. As of the date of this
Agreement, there are 24,518,597 shares of Common Stock outstanding,
4,815,000 of which are owned by the Selling Stockholder. The capital
stock of the Company, including the Shares, conforms in all material
respects to the description thereof contained in the Registra-
-3-
<PAGE>
<PAGE>
tion Statement and the Prospectus under the caption "Description of
Capital Stock"; and the certificates for the Shares are in due and
proper form and the holders of the Shares after making payment therefor
will not be subject to personal liability by reason of being such
holders.
(c) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware with all requisite power and authority to (i) own its
properties and conduct its business as described in the Registration
Statement and the Prospectus and (ii) execute and deliver this
Agreement.
(d) All of the issued and outstanding shares of capital stock of
each of the subsidiaries of the Company (the "Subsidiaries") other than
General Photonics LLC are owned directly by the Company or another
subsidiary of the Company; all of such shares have been duly authorized
and validly issued and are fully paid and nonassessable and, except as
described in the Prospectus, are owned free and clear of any pledge,
lien, encumbrance, security interest or other claim; there are no
outstanding rights, subscriptions, warrants, calls, preemptive rights,
options or other agreements of any kind with respect to the capital
stock of any of the Subsidiaries.
(e) Each of the Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation, with all requisite power and
authority to own its respective properties and to conduct its respective
businesses.
(f) Each of the Company and each of the Subsidiaries is duly
qualified or licensed by, and is in good standing in, each jurisdiction
in which it owns or leases property or conducts its business and in each
other jurisdiction in which the failure, individually or in the
aggregate, to be so qualified or licensed could, singly or in the
aggregate, reasonably be expected to have a material adverse effect on
the properties, assets, operations, business, business prospects or
condition (financial or other) of the Company and the Subsidiaries taken
as a whole (a "Material Adverse Effect"). Each of the Company and each
of the Subsidiaries is in compliance with the laws, orders, rules,
regulations and directives of any federal, state, local or foreign
government or regulatory authority, agency or commission, including
courts of competent jurisdiction (collectively, "Governmental
Authority"), applicable to the Company, except for such failure to be in
compliance as could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(g) Neither the Company nor any of the Subsidiaries is in breach
of, or in default under (nor has any event occurred which with notice,
lapse of time or both would constitute a breach of, or default under),
(x) its charter or bylaws, or (y) in the performance or observance of
any obligation, agreement, covenant or condition contained in any
license, indenture, lease, mortgage, deed of trust, bank loan or credit
agreement, material supply or distribution agreement or other agreement
or instrument to which the Company or any of the Subsidiaries is a party
or by which any of them may be bound or affected, which, in the case of
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<PAGE>
clause (y), breach or default could, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect. None of the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby will conflict with,
or result in any breach of or constitute a default under (nor constitute
any event which with notice, lapse of time or both would constitute a
breach of, or default under), (i) the charter or bylaws of the Company
or any of the Subsidiaries, (ii) any provision of any license,
indenture, lease, mortgage, deed of trust, bank loan or credit
agreement, material supply or distribution agreement or any other
agreement or instrument to which the Company or any of the Subsidiaries
is a party or by which any of them or their properties may be bound or
affected, (iii) any federal, state, local or foreign law, regulation or
rule or (iv) any decree, judgment or order applicable to the Company or
any of the Subsidiaries except, with respect to clauses (ii), (iii) and
(iv), for such conflicts, breaches or defaults that could not, singly or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) No approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the sale of the Shares as contemplated hereby, other than
registration of the Shares under the Act and the registration of the
Common Stock under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), clearance of the offering of the Shares with the
National Association of Securities Dealers, Inc. (the "NASD") and any
necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters.
(j) No person has the right, contractual or otherwise, to cause
the Company to issue to it, or register pursuant to the Act, any
securities of the Company by reason of the sale of the Shares to the
Underwriters hereunder.
(k) Deloitte & Touche LLP, whose reports on the consolidated
financial statements of the Company and the Subsidiaries are included in
the Registration Statement and the Prospectus, are independent public
accountants with respect to the Company as required by the Act and the
applicable published rules and regulations thereunder.
(l) All legal or governmental proceedings, contracts or documents
of a character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration
Statement have been so described or filed as required.
(m) There is no action, suit or proceeding (collectively, the
"Legal Proceedings") pending or, to the Company's knowledge, threatened
against the Company or any of the Subsidiaries or any of their
properties, at law or in equity, or before or by any Governmental
Authority, other than Legal Proceedings disclosed in the Prospectus and
Legal Proceeding that could not, singly or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
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<PAGE>
(n) The audited and unaudited financial statements (including the
notes thereto) included in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and
subsidiaries (as defined therein) as of the dates indicated and the
consolidated results of operations and cash flows of the Company and
subsidiaries or the Company's predecessor and subsidiaries, as the case
may be, and the consolidated stockholders' equity of the Company's
predecessor and subsidiaries, in each case for the periods specified;
such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved, except as disclosed therein.
(o) The pro forma financial information (including the notes
thereto) included in the Registration Statement and the Prospectus have
been properly computed on the bases described therein. The assumptions
used in the preparation of the pro forma financial information in the
Registration Statement and the Prospectus are set forth therein and are
reasonable, and the adjustments used therein are appropriate to give pro
forma effect to the transactions or circumstances referred to therein.
The other financial and statistical information and data relating to the
Company set forth in the Registration Statement and the Prospectus have
been prepared on a basis consistent with the financial statements and
books and records of the Company. The other statistical and
market-related data set forth in the Registration Statement and the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate. Subsequent to the respective dates
as of which information is given in the Registration Statement and the
Prospectus, and except as may be otherwise stated in the Registration
Statement and the Prospectus, there has not been: (A) any material
adverse change in the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole; (B) any transaction that is material to
the Company and the Subsidiaries taken as a whole, entered into by the
Company or any of the Subsidiaries; or (C) any obligation, contingent or
otherwise, directly or indirectly incurred by the Company or any of the
Subsidiaries that is material to the Company and the Subsidiaries taken
as a whole.
(p) Neither the Company nor any of the Subsidiaries has violated
any foreign, federal, state or local law, regulation, decree, order,
directive, requirement or judgment applicable to the Company or any of
the Subsidiaries relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), nor any federal or state law
relating to discrimination in the hiring, promotion or pay of employees
nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules
and regulations promulgated thereunder, and neither the Company nor any
of the Subsidiaries has received any notice which is pending alleging
any violation thereof or liability thereunder, which in any case could,
singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(q) The Company and each of the Subsidiaries has such permits,
licenses, consents, approvals, franchises and authorizations required by
governmental or regulatory
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<PAGE>
authorities ("Permits"), and has made all filings required, including
without limitation under any applicable Environmental Laws, as are
necessary to own, lease and operate its respective properties and to
conduct its business, except for such Permits the failure to so hold
could not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect ("Material Permits"). The Company and each of
the Subsidiaries is not in material violation of, and has fulfilled and
performed all of its material obligations with respect to, its Material
Permits and the Company has not received notice from any Governmental
Authority of the revocation or termination, or threatened revocation or
termination, of any Material Permits or any other material impairment of
the rights of the holder of any Material Permit; and, except as
described in the Prospectus, the Material Permits contain no
restrictions that are materially burdensome to the Company or any of the
Subsidiaries.
(r) Compliance by the Company and the Subsidiaries with
Environmental Laws (as currently in effect), including any capital or
operating expenditure required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities, singly or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(s) Neither the Company nor any of the Subsidiaries, nor, to the
Company's knowledge, any employee of the Company or any of the
Subsidiaries, has made any payment of funds of the Company or any of the
Subsidiaries prohibited by applicable law, and no funds of the Company
or any of the Subsidiaries have been set aside to be used for any
payment prohibited by applicable law.
(t) The Company and the Subsidiaries have filed all federal or
state income or franchise tax returns required to be filed and have paid
all taxes shown thereon as due and required to have been paid except for
tax assessments, if any, as to which adequate reserves have been
provided in accordance with generally accepted accounting principles.
There is no material tax deficiency which has been asserted against the
Company or any of the Subsidiaries. All material tax liabilities are
adequately provided for on the books of the Company and the
Subsidiaries.
(u) Each of the Company and the Subsidiaries owns or possesses
sufficient licenses or other rights to use all patents, patent
applications, trademarks, trademark applications, service marks, service
mark applications, trade names, copyrights, inventions, trade secrets,
technology and know-how (collectively, "Intellectual Property Rights")
required in the conduct of its business as described in the Prospectus.
To the Company's knowledge, there are no rights of third parties to, or
any infringement by others of, any such Intellectual Property Rights,
and there is not pending or, to the Company's knowledge, threatened any
action, suit, proceeding or claim by others that the Company or any
Subsidiary is infringing or otherwise violating Intellectual Property
Rights of others or challenging the validity or scope of the rights of
the Company or any Subsidiary in or to any such Intellectual Property
Rights other than infringements or claims that could not, singly or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
-7-
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<PAGE>
(v) The Company has not incurred, and will not incur, any
liability for any finder's fees or similar payments in connection with
the transactions herein contemplated.
(w) The Company and the Subsidiaries have good title to all
properties and assets owned or leased by them, in each case free and
clear of all liens, security interests, pledges, charges, encumbrances,
mortgages and defects, except such as are described or referred to in
the Registration Statement and the Prospectus or such as could not,
singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(x) Neither the Company nor any of the Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, or is subject to regulation under such act.
(y) Neither the Company nor any of its officers, directors or
affiliates (within the meaning of the Act) has taken, directly or
indirectly, any action designed to stabilize or manipulate the price of
the Common Stock, or which has constituted or which might in the future
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock, to facilitate the sale or
resale of the Shares or otherwise.
(z) The Company and each of the Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as the
Company reasonably believes is adequate for the conduct of their
respective businesses and the value of their respective properties.
(aa) No labor disturbance by the employees of the Company or any
of the Subsidiaries exists or, to the Company's knowledge, is threatened
which could, singly or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
4. Representations and Warranties of the Selling Stockholder. The
Selling Stockholder represents and warrants to each Underwriter that:
(a) The Selling Stockholder is and at the time of delivery of the
Shares as contemplated by this Agreement will be the lawful owner of the
Shares and, at the time of delivery thereof, will have good and
marketable title to the Shares, and upon delivery of and payment for the
Shares in accordance with this Agreement, the Underwriters will acquire
good and marketable title to the Shares, free and clear of any claim,
lien, encumbrance, security interest, restriction on transfer or other
defect in title.
(b) The Selling Stockholder has and at the time of delivery of
the Shares will have all requisite power and authority to sell, assign,
transfer and deliver the Shares in the manner provided in this
Agreement.
(c) This Agreement has been duly authorized, executed and
delivered by the Selling Stockholder and Wassall PLC ("Wassall").
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<PAGE>
(d) The sale of the Shares by the Selling Stockholder pursuant
hereto is not prompted by any material and adverse information
concerning the Company that is not described in the Prospectus; to the
Selling Stockholder's knowledge, neither the Registration Statement nor
any supplement or amendment thereto, at the Effective Time, at the time
of purchase or at the additional time of purchase, contained or will
contain any untrue statement of material fact or omitted or will omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and neither the Prospectus nor
any supplement or amendment thereto, at the Effective Time, at the time
of purchase or at the additional time of purchase, contained or will
contain any untrue statement of material fact or omitted or will omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Selling
Stockholder makes no representation or warranty with respect to any
statement contained in the Registration Statement or the Prospectus in
reliance upon and in conformity with information concerning the
Underwriters furnished in writing by or on behalf of any Underwriter
through the Underwriters to the Company expressly for use in the
Registration Statement or the Prospectus and set forth in the third
paragraph of the section of the Registration Statement and the
Prospectus entitled "Underwriting."
(e) The consummation of the transactions contemplated hereby and
the fulfillment of the terms hereof will not conflict with, or result in
any breach of or constitute a default under (nor constitute any event
which with notice, lapse of time or both would constitute a breach of or
default under), (i) the Articles of the Selling Stockholder, (ii) any
provision of any license, indenture, lease, mortgage, deed of trust,
bank loan or credit agreement or any other material agreement or
instrument to which the Selling Stockholder is a party or by which the
Selling Stockholder or any of its properties may be bound or affected,
(iii) any federal, state, local or foreign law or regulation or (iv) any
decree, judgment or order binding on the Selling Stockholder except,
with respect to clauses (ii), (iii) and (iv), for such conflicts,
breaches or defaults that would not materially impair or delay the
ability of the Selling Stockholder to consummate the transactions
contemplated by this Agreement.
(f) Neither the Selling Stockholder nor any of its officers,
directors or affiliates (within the meaning of the Act) has taken,
directly or indirectly, any action designed to stabilize or manipulate
the price of the Common Stock, or which has constituted or which might
in the future reasonably be expected to cause or result in stabilization
or manipulation of the price of the Common Stock, to facilitate the sale
or resale of the Shares or otherwise.
(g) The Shares do not constitute a "United States real property
interest" as defined in U.S. Internal Revenue Code section 897(c)(1).
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise
to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as the Underwriters may
designate and to maintain such qualifications in effect as long as
re-
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<PAGE>
quired for the distribution of the Shares; provided, however, that the
Company shall not be required to qualify as a foreign corporation or to
consent to the service of process under the laws of any such state
(except service of process with respect to the offering and sale of the
Shares); promptly to advise the Underwriters of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to use
its best efforts to obtain the withdrawal of any order of suspension at
the earliest practicable time;
(b) to make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendment or supplement
thereto after the effective date of the Registration Statement) as the
Underwriters may request for the purposes contemplated by the Act;
(c) to advise the Underwriters promptly and if requested by the
Underwriters to confirm such advice in writing, (i) when the
Registration Statement has become effective and when any post-effective
amendment thereto becomes effective and (ii) when the Prospectus is
filed with the Commission pursuant to Rule 424(b) under the Act, if
required under the Act (which the Company agrees to file in a timely
manner under such Rule);
(d) to advise the Underwriters promptly, confirming such advice
in writing, of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information with respect thereto, or of notice of institution
of proceedings for or the entry of a stop order suspending the
effectiveness of the Registration Statement and, if the Commission
should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting or
removal of such order as soon as possible; to advise the Underwriters
promptly of any proposal to amend or supplement the Registration
Statement or the Prospectus and to file no such amendment or supplement
to which the Underwriters shall reasonably object in writing;
(e) to furnish to the Underwriters and, upon request to each of
the other Underwriters, for a period of five years from the date of this
Agreement (i) copies of all reports or other communications that the
Company shall send to its stockholders and (ii) copies of all annual,
quarterly and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar form as may be designated by the
Commission, and any other document filed by the Company pursuant to
Section 12, 13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(f) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a prospectus
relating to the Shares is required to be delivered under the Act that,
in the reasonable judgment of the Company, would require the making of
any change in the Prospectus then being used, so that the Prospectus, as
then supplemented, would not include an untrue statement of a material
fact or omit to state a ma-
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<PAGE>
terial fact necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading and, during
such time, promptly to prepare and furnish, at the Company's expense, to
the Underwriters such amendments or supplements to such Prospectus as
may be necessary to reflect any such change, in such quantities as
requested by the Underwriters, and to furnish to the Underwriters a copy
of such proposed amendment or supplement before filing any such
amendment or supplement with the Commission;
(g) to make generally available to its security holders, and to
deliver to the Underwriters, an earnings statement of the Company (which
need not be audited and which will satisfy the provisions of Section
11(a) of the Act including, at the option of the Company, Rule 158)
covering a period of 12 months beginning after the effective date of the
Registration Statement but ending not later than 15 months after the
date of the Registration Statement, as soon as is reasonably practicable
after the termination of such 12-month period;
(h) to furnish to each of the Underwriters and their counsel
copies of the Registration Statement, as initially filed with the
Commission, and of all amendments thereto (including all exhibits
thereto) and sufficient copies of the foregoing (other than exhibits)
for distribution of a copy to each of the other Underwriters;
(i) to furnish to the Underwriters as early as practicable prior
to the time of purchase and the additional time of purchase, as the case
may be, but not later than two business days prior thereto, a copy of
the latest available unaudited interim consolidated financial
statements, if any, of the Company and the Subsidiaries that have been
read by the Company's independent certified public accountants as stated
in their letter to be furnished pursuant to Section 8(b);
(j) not to offer, sell, contract to sell, pledge, grant any
option to purchase, transfer or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock or warrants or other rights
to purchase or acquire Common Stock or permit the registration under the
Act of any shares of Common Stock, except for the registration of the
Shares, for a period commencing on the date hereof and continuing for 90
days after the date of the Prospectus, without the prior written consent
of Dillon, Read & Co. Inc.; provided, however, that the foregoing shall
not prohibit the grant or issuances of options and restricted shares
(and shares in the case of directors) of Common Stock, in each case, to
officers, directors and employees of the Company pursuant to director
and employee stock plans described in the Prospectus;
(k) to furnish to the Underwriters, before filing with the
Commission subsequent to the effective date of the Registration
Statement and during the period referred to in paragraph (f) above, a
copy of any document proposed to be filed pursuant to Sections 13, 14 or
15(d) of the Exchange Act; and
(l) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement otherwise becomes effective
or is terminated, to pay all expenses, fees and taxes (other than (x)
any transfer taxes and (y) fees and disbursements of counsel for
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the Underwriters except as set forth under Section 7 and clauses (ii)
and (iii) below) in connection with (i) the preparation and filing of
the Registration Statement, each Preliminary Prospectus, the Prospectus
and any amendment or supplement thereto, and the printing and furnishing
of copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the word processing or printing of
this Agreement, any dealer agreements, and the reproduction or printing
and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (iii) the
qualification of the Shares for offering and sale under state laws as
aforesaid (including reasonable legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys to the Underwriters and to
dealers, (iv) any listing of the Shares on any securities exchange or
qualification of the Shares for inclusion in the Nasdaq National Market
and any registration thereof under the Exchange Act, (v) any filing for
review of the public offering of the Shares by the NASD and (vi) the
performance of the Company's and the Selling Stockholder's other
obligations hereunder.
6. Certain Covenants of the Selling Stockholder. The Selling Stockholder
agrees that it will not offer, sell, contract to sell, pledge, grant any option
to purchase, transfer or otherwise dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or warrants or other rights to purchase or acquire
Common Stock, except for the sale of the Shares pursuant to this Agreement, for
a period commencing on the date hereof and continuing for 90 days after the date
of the Prospectus, without the prior written consent of Dillon, Read & Co. Inc.
7. Reimbursement of Underwriters' Expenses. If the Firm Shares or
the Additional Shares are not delivered for any reason, other than the failure
of the Underwriters to purchase the Firm Shares or the Additional Shares (unless
such failure is permitted under the provisions of Section 9(b) of this
Agreement), the Company will reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of their
counsel.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholder on the date hereof and at the time of purchase or the additional
time of purchase, as the case may be, the performance in all material respects
by each of the Company and the Selling Stockholder of its obligations hereunder
to be performed at or prior to the time of purchase or the additional time of
purchase, as the case may be, and to the following additional conditions:
(a) The Company shall furnish to the Underwriters at the time of
purchase and at the additional time of purchase, as the case may be, an
opinion of Weil, Gotshal & Manges LLP, special counsel for the Company
and the Selling Stockholder, addressed to the Underwriters and dated the
time of purchase or the additional time of purchase, as the case may be,
with reproduced copies for each of the other Underwriters and in form
reasonably satisfactory to Cahill Gordon & Reindel, counsel for the
Underwriters, to the effect that:
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(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with all requisite corporate power and
authority (A) to own its properties and conduct its business as
described in the Registration Statement and the Prospectus and
(B) to execute and deliver this Agreement;
(ii) this Agreement has been duly authorized, executed and
delivered by the Company and Wassall;
(iii) the certificates for the Shares are in due and proper form
and the holders of the Shares will not be subject to personal
liability by reason of being such holders;
(iv) (a) the Company has an authorized capitalization as set
forth under the heading "Capitalization" in the Registration
Statement and the Prospectus, and (b) the outstanding shares of
capital stock of the Company (including the Shares) have been
duly authorized and validly issued and are fully paid and
nonassessable and have not been issued in violation of any
preemptive rights under the Company's certificate of
incorporation or under the Delaware General Corporation Law;
(v) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus under
the caption "Description of Capital Stock";
(vi) the Registration Statement and the Prospectus (except as to
the financial statements and schedules and other financial,
statistical and accounting data contained therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act;
(vii) the Registration Statement has become effective under the
Act and no stop order proceedings with respect thereto are
pending or, to the best of such counsel's knowledge, threatened
under the Act;
(viii) no approval, authorization, consent or order of or filing
with any New York, Delaware corporate or federal Governmental
Authority is required in connection with the sale of the Shares
as contemplated hereby other than filings and other actions
required pursuant to federal and state securities and blue sky
laws, as to which we express no opinion, and the Act or the
Exchange Act and the rules and regulations promulgated
thereunder;
(ix) the execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not conflict
with, or result in any breach of, or constitute a default under
(nor constitute any event which with notice, lapse of time or
both would constitute a breach of or default under), (i) the
charter or bylaws of the Company, (ii)
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any provision of any agreement or instrument evidencing or
governing indebtedness for borrowed money or any other material
agreement or instrument known to such counsel to which the
Company is a party or by which the Company or any of its
properties is bound, or (iii) any New York, Delaware corporate
or federal law or regulation or (iv) any decree, judgment or
order applicable to the Company known to such counsel;
(x) the statements in the Registration Statement and the
Prospectus under the captions "Description of Capital Stock" and
"Shares Eligible For Future Sale" insofar as they are
descriptions of laws, regulations and rules, or of contracts,
agreements and other legal documents, or refer to statements of
law or legal conclusions, have been reviewed by such counsel and
are accurate in all material respects;
(xi) neither the Company nor any of the Subsidiaries is an
"investment company" within the meaning of Investment Company
Act of 1940, as amended;
(xii) upon transfer and delivery of the Shares and payment
therefor in accordance with this Agreement, the Underwriters will
acquire good and marketable title to the Shares, free and clear
of any claim, lien, encumbrance, security interest, community
property right, restriction on transfer or other defect in title,
assuming that the several Underwriters are good faith purchasers
and do not have notice of any adverse claim;
(xiii) no approval, authorization, consent or order of or
filing with any Governmental Authority of the United Kingdom and
no corporate action of Wassall is required, in each case, in
connection with the sale of the Shares by the Selling
Stockholder to the Underwriters as contemplated hereby, except
such as have been obtained and are in full force and effect and
filings and other actions that may be required pursuant to the
securities laws of the United Kingdom, as to which we express no
opinion; and
(xiv) the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby do
not and will not conflict with, or result in any breach of, or
constitute a default under, (x) the memorandum or articles of
association of Wassall, (y) any decree, judgment or order
applicable to Wassall of which such counsel is aware or (z) any
United Kingdom law or regulation.
In addition, such counsel shall state that although they have not
independently verified and are not passing upon the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus (except to the extent specified in paragraphs
(v) and (x)), no facts have come to the attention of such counsel that
cause them to believe that the Registration Statement or any amendment
thereto at the time such Registration Statement or amendment became
effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus or any
supplement thereto, on the
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date thereof or on the date of such opinion, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and related notes, the
financial statement schedules and the other financial, statistical and
accounting data included in the Registration Statement or Prospectus).
(b) The Company shall furnish to the Underwriters at the time of
purchase and at the additional time of purchase, as the case may be, an
opinion of Robert J. Siverd, Esq., General Counsel of the Company,
addressed to the Underwriters and dated the time of purchase or the
additional time of purchase, as the case may be, with reproduced copies
for each of the other Underwriters and in form reasonably satisfactory
to Cahill Gordon & Reindel, counsel for the Underwriters, to the effect
that:
(i) each of the Company and each of the Subsidiaries is duly
qualified or licensed to do business and is in good standing as a
foreign corporation in each jurisdiction in which it conducts
business or owns property and in which the failure, singly or in
the aggregate, to be so licensed or qualified could reasonably be
expected to have a Material Adverse Effect;
(ii) each of the Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the state in which such Subsidiary is incorporated, with all
requisite corporate power and authority to own its properties and
to conduct its business as described in the Registration
Statement and the Prospectus;
(iii) the outstanding shares of capital stock of the Company
(including the Shares) have not been issued in violation of any
preemptive rights under any agreement or arrangement known to
such counsel; all of the issued and outstanding shares of capital
stock of each Subsidiary have been duly authorized and validly
issued and are fully paid and nonassessable and, except as
described in the Prospectus, are owned, directly or indirectly,
by the Company free and clear of any pledge, lien, encumbrance,
security interest, preemptive right or other claim, and there are
no rights, warrants, options or other agreements to acquire or
instruments convertible into or exchangeable for any shares of
capital stock or other equity interest of any Subsidiary;
(iv) the execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not conflict
with, or result in any breach of, or constitute a default under
(nor constitute any event which with notice, lapse of time or
both would constitute a breach of or default under), the charter
or bylaws of the Company or any of the Subsidiaries, or any
provision of any material license or any indenture, lease,
mortgage, deed of trust, bank loan or credit agreement or any
other material agree-
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ment or instrument known to such counsel to which the Company or
any of the Subsidiaries is a party or by which the Company or
any of the Subsidiaries or any of their properties is bound, or
under any Kentucky, Delaware corporate or federal law,
regulation or rule or any decree, judgment or order applicable
to the Company or any of the Subsidiaries;
(v) the Company and each of the Subsidiaries has all Material
Permits, including without limitation under any applicable
Environmental Laws, as are necessary to own, lease and operate
its respective properties and to conduct its business in the
manner described in the Prospectus;
(vi) all contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement have been so
described or filed;
(vii) to such counsel's knowledge, no person has the right,
contractual or otherwise, to cause the Company to issue to it, or
register pursuant to the Act, any securities of the Company in
consequence of the sale of the Shares to the Underwriters
hereunder;
(viii) except as described in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings of which
such counsel has knowledge pending or threatened against the
Company or any of the Subsidiaries, or any of their respective
properties, at law or in equity, or before or by any federal,
state, local or foreign governmental or regulatory commission,
board, body, authority or agency that individually or in the
aggregate could reasonably be expected to result in a judgment,
decree or order having a Material Adverse Effect; and
(ix) the statements in the Registration Statement and the
Prospectus under the captions "Business -- Environmental Matters"
and "Business -- Legal Proceedings," insofar as they are
descriptions of laws, regulations and rules, of legal or
governmental proceedings or of contracts, agreements and other
legal documents, or refer to statements of law or legal
conclusions, have been reviewed by such counsel and are accurate
in all material respects.
In addition, such counsel shall state that, although he has not
independently verified and is not passing upon the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus (except to the extent specified in paragraph
(ix)), no facts have come to the attention of such counsel that cause
him to believe that the Registration Statement or any amendment thereto
at the time such Registration Statement or amendment became effective
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or any
supplement thereto, on the date thereof or on the date of such opinion,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light
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of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect
to the financial statements and related notes, the financial statement
schedules and the other financial, statistical and accounting data
included in the Registration Statement or Prospectus).
(c) The Company shall furnish to the Underwriters at the time of
purchase and at the additional time of purchase, as the case may be, an
opinion of Loeff Claeys Verbeke, special Netherlands counsel for the
Selling Stockholder, addressed to the Underwriters and dated the time of
purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form
reasonably satisfactory to Cahill Gordon & Reindel, counsel for the
Underwriters, to the effect that:
(i) this Agreement has been duly authorized by all requisite
corporate action on the part of, and has been duly executed and
delivered by, the Selling Stockholder;
(ii) the Selling Stockholder has the corporate power to sell,
assign, transfer and deliver the Shares to be sold by the Selling
Stockholder in the manner provided in this Agreement and to
perform its obligations hereunder;
(iii) the consummation of the transactions contemplated hereby
and the fulfillment of the terms hereof will not conflict with,
or result in any breach of, or constitute a default under (nor
constitute any event which with notice, lapse of time or both
would constitute a breach of or default under), (a) the Articles
of the Selling Stockholder, or (b) any law or regulation of The
Netherlands; and
(iv) no approval, authorization, consent or order of or filing
with any governmental authority of The Netherlands, other than
pursuant to any securities law applicable in The Netherlands and
the notice requirements to the Netherlands Central Bank pursuant
to the Act on Foreign Financial Relations (Wet Financiele
Betrekkingen Buitenland) and regulations promulgated thereunder,
is required in connection with the offering and sale of the
Shares by the Selling Stockholder as contemplated by this
Agreement.
(d) The Company shall furnish to the Underwriters at the date of
this Agreement, at the time of purchase and at the additional time of
purchase, letters from Deloitte & Touche LLP dated, respectively, the
date of this Agreement and the time of purchase and the additional time
of purchase, as the case may be, and addressed to the Underwriters (with
reproduced copies for each of the Underwriters) in form and substance
satisfactory to the Underwriters.
(e) The Underwriters shall have received at the time of purchase
and at the additional time of purchase, as the case may be, an opinion
from Cahill Gordon & Reindel in form and substance satisfactory to the
Underwriters.
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(f) No amendment or supplement to the Registration Statement or
the Prospectus shall be filed prior to the time the Registration
Statement becomes effective to which the Underwriters shall have
objected in writing.
(g) The Registration Statement shall become effective at or
before 5:00 P.M., New York City time, on the date of this Agreement and,
if Rule 430A under the Act is used, the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Act at or before
5:00 P.M., New York City time, on the second full business day after the
date of this Agreement; provided, however, that the Company, the Selling
Stockholder and the Underwriters and any group of Underwriters,
including the Underwriters, who have agreed hereunder to purchase in the
aggregate at least 50% of the Firm Shares from time to time may agree in
writing or by telephone, confirmed in writing, on a later date.
(h) Prior to the time of purchase or the additional time of
purchase, as the case may be: (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated for such purpose under Section 8(d) or
8(e) of the Act; (ii) the Registration Statement and all amendments
thereto, if any, shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and (iii) the
Prospectus and all amendments or supplements thereto, if any, shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(i) Between the time of execution of this Agreement and the time
of purchase or the additional time of purchase, as the case may be,
there has not been: (i) any material and adverse change in the
properties, assets, operations, business, business prospects or
condition (financial or other) of the Company and the Subsidiaries taken
as a whole, other than as described in the Registration Statement and
the Prospectus; or (ii) any transaction that is material to the Company
and the Subsidiaries taken as a whole entered into by the Company or any
of the Subsidiaries, other than as described in the Registration
Statement and the Prospectus; or (iii) any obligation, contingent or
otherwise, directly or indirectly, incurred by the Company or any of the
Subsidiaries that is material to the Company and the Subsidiaries taken
as a whole, other than as described in the Registration Statement and
the Prospectus.
(j) The Company, at the time of purchase or additional time of
purchase, as the case may be, shall have delivered to the Underwriters a
certificate of two of its executive officers to the effect that the
representations and warranties of the Company as set forth in this
Agreement are true and correct as of each such date and the conditions
set forth in Section 8(h) and Section 8(i) have been met.
(k) The Selling Stockholder, at the time of purchase or
additional time of purchase, as the case may be, shall have delivered to
the Underwriters a certificate to the effect
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that the representations and warranties of the Selling
Stockholder as set forth in this Agreement are true and correct
as of each such date.
(l) The Shares shall have been approved for listing on the New
York Stock Exchange.
(m) The Company shall have furnished to the Selling Stockholder
and the Underwriters a certificate dated the time of purchase (x)
pursuant to U.S. Treasury Regulation section 1.897-2(g) stating that the
Shares do not constitute a United States real property interest and (y)
stating that the Company has complied with the requirements of U.S.
Treasury Regulation section 1.897-2(h)(2) or 1.897-2(h)(4) in relation
to the statement referred to in clause (x) of this paragraph.
(n) The Company and the Selling Stockholder shall have furnished
to the Underwriters such other documents and certificates as the
Underwriters reasonably may request.
(o) The Company and the Selling Stockholder shall have performed
such of their respective obligations under this Agreement as are to be
performed by the terms hereof at or before the time of purchase and at
or before the additional time of purchase, as the case may be.
9. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective (i) if Rule 430A under
the Act is not used, when the Underwriters shall have received
notification of the effectiveness of the Registration Statement, or (ii)
if Rule 430A under the Act is used, when the parties hereto have
executed and delivered this Agreement.
(b) The obligations of the several Underwriters hereunder shall
be subject to termination in the absolute discretion of an Underwriter
or any group of Underwriters which has agreed to purchase in the
aggregate at least 50% of the Firm Shares if, at any time prior to the
time of purchase or, with respect to the purchase of any Additional
Shares, the additional time of purchase of such Additional Shares, as
the case may be, trading in securities on the New York Stock Exchange
shall have been suspended or minimum prices shall have been established
on the New York Stock Exchange or if a banking moratorium shall have
been declared either by the United States or New York State authorities,
or if the United States shall have declared war in accordance with its
constitutional processes or there shall have occurred any material
outbreak or escalation of hostilities or other national or international
calamity or crisis of such magnitude in its effect on, or any material
adverse change in, any financial market which, in each case, in the
judgment of such Underwriter or in the judgment of such group of
Underwriters, makes it impracticable to proceed with the offering of the
Shares as contemplated hereby. If an Underwriter or any group of
Underwriters elect to terminate this Agreement as provided in this
Section 9(b), the Company and each other Underwriter shall be notified
promptly by letter or telegram.
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(c) If any Underwriter shall default in its obligation to take up
and pay for the Firm Shares to be purchased by it hereunder and if the
number of Firm Shares which all Underwriters so defaulting shall have
agreed but failed to take up and pay for does not exceed 10% of the
total number of Firm Shares, the non-defaulting Underwriters shall take
up and pay for (in addition to the aggregate principal amount of Firm
Shares they are obligated to purchase pursuant to Section 1) the number
of Firm Shares agreed to be purchased by all such defaulting
Underwriters as hereinafter provided. Such Shares shall be taken up and
paid for by such non-defaulting Underwriter or Underwriters in such
amount or amounts as the non-defaulting Underwriters may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate
number of Firm Shares set opposite the names of such non-defaulting
Underwriters in Schedule A.
(d) If any Underwriter shall default in its obligation to take up
and pay for the Firm Shares to be purchased by it hereunder and if the
number of Firm Shares which all Underwriters so defaulting shall have
agreed but failed to take up and pay for exceeds 10% of the total number
of Firm Shares, and arrangements satisfactory to the non-defaulting
Underwriters, the Company and the Selling Stockholder are not made
within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter.
(e) Without relieving any defaulting Underwriter from its
obligations hereunder, the Selling Stockholder agrees with the
non-defaulting Underwriters that it will not sell any Firm Shares
hereunder unless all of the Firm Shares are purchased by the
Underwriters (or by substituted underwriters selected by the
Underwriters with the approval of the Selling Stockholder or selected by
the Selling Stockholder with the approval of the Underwriters pursuant
to Section 9(d)). If a new Underwriter or Underwriters are substituted
for a defaulting Underwriter or Underwriters in accordance with Section
9(d) hereof, the Selling Stockholder or the Underwriters shall have the
right to postpone the time of purchase for a period not exceeding five
business days in order that any necessary change in the Registration
Statement and the Prospectus and other documents may be effected. The
term Underwriter as used in this Agreement shall refer to and include
any Underwriter substituted under this Section 9 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
(f) If the purchase of the Shares by the Underwriters, as
contemplated by this Agreement, is not consummated for any reason
permitted under this Agreement or if such purchase is not consummated
because the Company or the Selling Stockholder shall be unable to comply
with any of the terms of this Agreement, the Company and the Selling
Stockholder shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 6(a), 7 and 10),
and the Underwriters shall be under no obligation or liability to the
Company or the Selling Stockholder under this Agreement (except to the
extent provided in Section 10).
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10. Indemnity by the Company, the Selling Stockholder and the
Underwriters.
(a) The Company and the Selling Stockholder, jointly and
severally, agree to indemnify, defend and hold harmless each
Underwriter, each person that controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
each Underwriter's agents, employees, officers and directors and the
agents, employees, officers and directors of any such controlling person
(collectively, the "Underwriter indemnified parties") from and against
any and all losses, claims, damages, judgments, liabilities and expenses
(including the reasonable cost of investigation) (collectively,
"Losses") which, jointly or severally, any Underwriter indemnified party
may incur as they are incurred (and regardless of whether such
Underwriter indemnified party is a party to the litigation, if any)
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement
relating to the Shares or the Prospectus or any Preliminary Prospectus,
or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as such
Losses arise out of, or are based upon, any such untrue statement or
omission or alleged untrue statement or omission based upon and in
conformity with information with respect to any Underwriter furnished in
writing by any Underwriter through the Underwriters to the Company
expressly for use therein with reference to such Underwriter; provided,
however, that (x) the Selling Stockholder shall not be liable under this
Section 10 for any Losses arising out of or based upon untrue or alleged
untrue statements or omissions or alleged omissions that relate (but
only to the extent they relate) to periods subsequent to the
consummation of the Company's initial public offering and, provided,
further, in the case of an untrue statement or omission, that the
Selling Stockholder was unaware either of the untruth of such statement
or of such omission, as the case may be, and (y) in any event, the
Selling Stockholder shall not be liable under this Section 10 in an
amount exceeding the net proceeds to be received by such Selling
Stockholder (before deducting expenses) from the sale of Shares
hereunder. Notwithstanding the foregoing, the indemnification contained
in this paragraph with respect to any Preliminary Prospectus shall not
inure to the benefit of any Underwriter indemnified party for any
liability arising from or based upon an untrue statement or omission
made in a Preliminary Prospectus if (i) it is established in the related
proceeding that such Underwriter failed to send or give a copy of the
Prospectus (as amended or supplemented if the Company shall have
furnished such amendments or supplements thereto to such Underwriter
reasonably prior to the written confirmation of such sale) to such
person with or prior to the written confirmation of such sale, if
required by applicable law, and (ii) such untrue statement or omission
of a material fact in or from such Preliminary Prospectus was corrected
in the Prospectus (as amended or supplemented if amended or supplemented
as aforesaid). This indemnity agreement will be in addition to any
liability the Company or the Selling Stockholder otherwise may have.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted
against any Underwriter indemnified party, with respect to which
indemnity may be sought against the Company or the Selling Stockholder
pursuant to this Section 10, such Underwriter indemnified party shall
promptly
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notify the Company and the Selling Stockholder in writing, and the
Company and/or the Selling Stockholder (as they determine between
themselves in their discretion) shall assume the defense thereof
(individually or collectively, the "Defending Party"), including the
employment of counsel reasonably satisfactory to the Underwriter
indemnified party and payment of all fees and expenses; provided,
however, that the omission so to notify the Company and the Selling
Stockholder shall not relieve them from any liability that they may have
to any Underwriter indemnified party except to the extent that the
indemnifying party is materially prejudiced thereby. An Underwriter
indemnified party shall have the right to employ separate counsel in any
such action or proceeding and to assume the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such
Underwriter indemnified party unless (i) the employment of such counsel
has been authorized in writing by the Defending Party, (ii) the
Defending Party has failed promptly to assume the defense and employ
counsel reasonably satisfactory to the Underwriter indemnified party or
(iii) the named parties to any such action or proceeding (including any
impleaded parties) include both the Underwriter indemnified party and
the Defending Party and such Underwriter indemnified party shall have
reasonably concluded that there may be one or more legal defenses
available to it that are different from or additional to those available
to the Defending Party (in which case the Defending Party shall not have
the right to assume the defense of such action on behalf of such
Underwriter indemnified party), in any of which events such fees and
expenses shall be borne by the Defending Party and reimbursed as they
are incurred. It is understood, however, that the Defending Party shall
not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) at any time for all such Underwriter
indemnified parties, which firm shall be designated in writing by
Dillon, Read & Co. Inc., and that all such fees and expenses shall be
reimbursed as they are incurred. The Company and the Selling Stockholder
shall not be liable for any settlement of any such action effected
without the written consent of the Defending Party (which consent shall
not be unreasonably withheld or delayed), but if settled with the
written consent of the Defending Party, or if there is a final judgment
with respect thereto, the Company and the Selling Stockholder agree to
indemnify and hold harmless each Underwriter indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(c) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, its officers who sign the
Registration Statement, and any person that controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(collectively, the "Company indemnified parties") and the Selling
Stockholder, its directors and any person that controls the Selling
Stockholder within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (collectively, the "Selling Stockholder indemnified
parties") to the same extent as the foregoing indemnity from the Company
and the Selling Stockholder to the Underwriter indemnified parties, but
only with respect to information concerning such Underwriter furnished
in writing by or on behalf of such Underwriter through the Underwriters
to the Company expressly for use with respect to such Underwriter in the
Registration Statement, any Preliminary Prospectus or the Prospectus. In
case any action
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shall be brought against any Company indemnified party or the Selling
Stockholder based on the Registration Statement, any Preliminary
Prospectus or the Prospectus and in respect of which indemnity may be
sought against any Underwriter pursuant to this Section 10(c), such
Underwriter shall have the rights and duties given to the Company and
the Selling Stockholder by Section 10(b) (except that if the Company
and/or the Selling Stockholder shall have assumed the defense thereof
such Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, provided,
however, that the fees and expenses of such separate counsel shall be at
the expense of such Underwriter), and the Company indemnified parties
and the Selling Stockholder indemnified parties shall have the rights
and duties given to the Underwriter indemnified parties by Section
10(b).
(d) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless any Underwriter
indemnified party or any Company indemnified party or the Selling
Stockholder, then the party required to indemnify such indemnified party
under this Section 10, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, judgments, liabilities and
expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholder on
the one hand and the Underwriters on the other hand from the offering of
the Shares, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Selling Stockholder
on the one hand and the Underwriters on the other hand in connection
with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Selling Stockholder on the one hand and the Underwriters on the
other hand shall be deemed to be in the same proportion as the total
proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and
the Selling Stockholder bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault of the
Company and the Selling Stockholder on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company, by the Selling
Stockholder or by the Underwriters, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, judgments, liabilities and
expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any claim or action.
The Company, the Selling Stockholder and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 10(d) were determined by pro rata allocation or by any other
method of allocation (even if the Underwriters were treated as one
entity for such purpose) that does not take account of the equitable
considerations re-
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ferred to in this Section 10(d). Notwithstanding the provisions of this
Section 10(d), no Underwriter indemnified party shall be required to
contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by such Underwriter indemnified party
and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter indemnified party otherwise
has been required to pay by reason of such untrue statement or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 10 are several in
proportion to their respective underwriting commitments and are not
joint.
(e) The statements in the third paragraph under the caption
"Underwriting" in the Prospectus (to the extent such statements relate
to an Underwriter) constitute the only information furnished to the
Company in writing by such Underwriter expressly for use in the
Registration Statement, any Preliminary Prospectus or the Prospectus.
(f) The indemnity and contribution agreements contained in this
Section 10 and the representations, warranties and covenants of the
Company and the Selling Stockholder contained in this Agreement shall
remain in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter indemnified party or by or on behalf of
any Company indemnified party or any Selling Stockholder indemnified
party , and shall survive any termination of this Agreement or the
delivery of the Shares. Subject to the provisions of Section 10(b) and
Section 10(c), the Company, the Selling Stockholder and each Underwriter
agree promptly to notify the others of the commencement of any
litigation or proceeding against it in connection with the sale of the
Shares or in connection with the Registration Statement or the
Prospectus.
(g) The Company and the Selling Stockholder may agree, as between
themselves, as to their respective amounts of liability under this
Section 10 for which they each shall be responsible and as to which of
them shall control the defense of any proceeding, but no such agreement
shall limit the rights of the Underwriters or any Underwriter
indemnified party against either the Company or the Selling Stockholder.
11. Guarantee by Wassall. Wassall unconditionally and irrevocably
guarantees to the Underwriters the performance of the Selling Stockholder's
obligations under this Agreement.
12. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Dillon, Read & Co. Inc., 535 Madison Avenue, New York, New York 10022,
Attention: Syndicate Department; if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company at
General Cable Corporation, 4 Tesseneer Drive, Highland Heights, Kentucky 41076,
Attention: General Counsel; if to the Selling Stockholder, shall be sufficient
in all respects, if delivered or sent to Wassall Netherlands Cable B.V.,
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c/o Wassall PLC, 39 Victoria Street, London 5W1H OEE, Attention: Company
Secretary; and it to Wassall, shall be sufficient in all respects if delivered
or sent to Wassall PLC, 39 Victoria Street, London 5W1H OEE, Attention: Company
Secretary.
13. Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW THEREOF. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN
INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS
AGREEMENT.
14. Parties at Interest. The agreement herein set forth has been
and is made solely for the benefit of the Underwriters, the Company, the Selling
Stockholder, the Underwriter indemnified parties, the Company indemnified
parties and the Selling Stockholder indemnified parties, and their respective
successors, assigns, executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from any
of the Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
15. Counterparts. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties.
-25-
<PAGE>
<PAGE>
If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholder, Wassall and the Underwriters, please so
indicate in the space provided below for such purpose, whereupon this letter and
your acceptance shall constitute a binding agreement among the Company, the
Selling Stockholder, Wassall and the Underwriters, severally.
Very truly yours,
GENERAL CABLE CORPORATION
By: ______________________________
Name:
Title:
WASSALL NETHERLANDS CABLE B.V.
By: _______________________________
Name:
Title:
WASSALL PLC
By: _______________________________
Name:
Title:
Accepted and agreed to as of
the date first above written
DILLON, READ & CO. INC.
LAZARD FRERES & CO. LLC
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED.
By: DILLON, READ & CO. INC.
By: _________________________________
Name:
Title:
-26-
<PAGE>
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Underwriter Shares
<S> <C>
Dillon, Read & Co. Inc...................................................
Lazard Freres & Co. LLC..................................................
Merrill Lynch, Pierce, Fenner & Smith Incorporated.......................
---------
Total............................................................ 4,350,000
=========
</TABLE>
<PAGE>
<PAGE>
[Weil, Gotshal & Manges LLP Letterhead]
August 6, 1997
General Cable Corporation
4 Tennessee Drive
Highland Heights, Kentucky 41076
Gentlemen:
We have acted as counsel to General Cable Corporation (the
"Company") in connection with the preparation and filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the
"Securities Act"), of a Registration Statement on Form S-1 (the "Registration
Statement"), pertaining to the registration of a proposed offering of up to
4,815,000 shares of the common stock, $0.01 par value (the "Common Stock") of
the Company (including 465,000 shares subject to an underwriters' over-allotment
option), all of which are currently outstanding (collectively, the "Shares").
Capitalized terms defined in the Registration Statement and used but not
otherwise defined herein are used herein as so defined.
In so acting, we have participated in the preparation of the
Registration Statement, and we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such corporate records and other
instruments, and such certificates or comparable documents of public officials
and of officers and representatives of the Company, and have made such inquiries
of such officers and representatives, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to this opinion that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Company.
<PAGE>
<PAGE>
General Cable Corporation
August 6, 1997
Page 2
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that the Shares have been validly issued and are
fully paid and non-assessable.
The opinions expressed herein are limited to the corporate laws
of the State of Delaware, and we express no opinion as to the effect on the
matters covered by this letter of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to this firm under the section
entitled "Legal Matters" in the prospectus included in the Registration
Statement.
Very truly yours,
WEIL, GOTSHAL & MANGES LLP
