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GENERAL PHOTONICS, LLC
INVESTOR'S REPRESENTATIONS,
CONTRIBUTION AGREEMENT, AND
SUBSCRIPTION AGREEMENT
The undersigned investor, Applied Photonic Devices, Inc., certifies and
warrants to General Photonics, LLC, a Delaware limited liability company (the
"Company"), that the limited liability company interest in the Company (the
"Interest") to be purchased by the investor is being acquired by the investor
for its own account for investment. The investor has no intention to assign,
transfer, sell or distribute all or any part of the Interest, nor does it have
any reason to anticipate any change in circumstances that might cause the
investor to assign, transfer, sell or distribute the Interest. No person other
than the investor will have any beneficial interest in the Interest.
The undersigned further hereby warrants and represents as follows:
A. INVESTOR'S REPRESENTATIONS.
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1. The investor understands that the offering and sale of the Interest have
not been registered with any state or federal agency, partially in reliance
upon the representations herein. The investor acknowledges that the Interest
purchased hereunder was issued in a transaction believed to be exempt from the
registration provisions of the Securities Act of 1933, as amended (the "Act"),
pursuant to Section 4(2) thereof and the regulations thereunder and in a
transaction believed to be exempt from the registration provisions of the
appropriate state securities law.
2. The investor is an "accredited investor" as defined in Rule 501 of
Federal Securities Regulation D because the investor: (i) is a corporation with
total assets in excess of $5,000,000; and (ii) was not formed for the purpose of
acquiring the Interest.
3. The investor, either alone or with its purchaser representatives, has
such knowledge and experience in financial, business, and investment matters
that the investor is capable of evaluating the merits and risks of an investment
in the Interest, and the investor has considered and evaluated the merits and
risks of acquiring the Interest.
4. The investor recognizes that, prior to the offering and sale of the
Interest, there has been no public market for the Interest and there is no
likelihood that after the offering there will be such a market for the Interest.
The investor further recognizes that it must bear the risk of the investment
indefinitely.
5. The investor will not sell or otherwise distribute any part of the
Interest unless such transaction is registered under the Act and under the
securities laws of the states in which the Interest is to be sold, or unless the
investor delivers to the Company (i) a no-action letter from the Securities and
Exchange Commission and the appropriate state securities officials as to such
proposed sale or sales or (ii) an opinion of counsel, satisfactory to counsel
for the Company, to the effect that registration of the proposed sale and
distribution is not required
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under the Act and such state laws. In addition, the investor understands that it
will not be readily able to liquidate the investment in the Interest in case of
an emergency.
6. The investor understands and agrees that the Limited Liability Company
Agreement of the Company will bear the following legend:
THE INTEREST REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY
APPLICABLE STATE LAW. THE INTEREST HAS BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF (I) AN EFFECTIVE REGISTRATION UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (II) AN
OPINION OF COUNSEL SATISFACTORY TO GENERAL PHOTONICS, LLC (THE
"COMPANY") TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT AND SUCH LAWS.
7. The investor understands and acknowledges that the Company is and will
be under no obligation to register any sale or other transfer of the Interest or
to comply with any exemption available for resale of the Interest without
registration under any securities laws.
8. The investor acknowledges that the Interest was not offered or sold to
the investor by means of any form of general solicitation, or general
advertising, or publicly disseminated advertisements or sales literature, nor is
the investor aware of any offers or sales made to other persons by such means.
9. The investor acknowledges that a commission or similar remuneration was
not or will not be paid or given, directly or indirectly, for the solicitation
of prospective purchasers in connection with the sale of the Interest.
10. The investor has been actively involved in the formation of the Company
and the investor participated in the negotiation of the terms of the Limited
Liability Company Agreement of the Company.
11. The investor has had the opportunity (i) to ask questions of, and to
receive answers from, the Company and any persons acting on its behalf
concerning the Company, its operations, and the terms, conditions and
consequences of the offering and sale of the Interest and (ii) to obtain any
additional information that the investor desired, including copies of any
documents requested about the Company or the transaction in which the Interest
is being offered and sold. No information or documents requested by the investor
have been denied to the investor.
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12. The investor understands that no governmental agency has made any
finding or determination as to the fairness of the terms of the offering or sale
of the Interest or any recommendation or endorsement of the Interest.
B. SUBSCRIPTION AND CONTRIBUTION.
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1. SUBSCRIPTION. Based on the foregoing representations (by which the investor
agrees to be bound), the undersigned hereby subscribes to purchase the Interest
in the amount designated below, on the following terms and conditions and
subject to the Company's acceptance thereof:
Tangible and Intangible Personal Property, Less the
Liabilities (as defined below), Having a
Net Value of: $6,278,000
Percentage of Total Membership
Interest in Company Represented
by the Interest: 50%
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In consideration of the Interest, the investor will contribute to the
Company the assets listed and valued as reflected on the attached EXHIBIT A (the
"Assets") and the Company will assume the liabilities in the amounts reflected
on the attached EXHIBIT B (the "Liabilities"). The values listed in Exhibits A
and B and reflected above are based on the November 30, 1996 balance sheet of
Seller and are subject to adjustment in accordance with the Closing Financial
Statements effective as of December 31, 1996.
2. REPRESENTATIONS AND WARRANTIES. The investor, and the owner of all the
investor's issued and outstanding capital stock, SpecTran Corporation, a
Delaware corporation ("SpecTran"), jointly and severally, represent and warrant
to the Company and any other investor in the Company as follows (except that
SpecTran makes no representations or warranties to any other investor in the
Company regarding the matters addressed in Sections 2.10 (Compliance with Law),
2.11 (Licenses), 2.12 (Taxes), 2.14 (Conduct of Operations), 2.15 (Undisclosed
Liabilities), 2.20 (Contracts and Leases) and 2.21 (Environmental Matters)):
2.1 ORGANIZATION.
(a) The investor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, with all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted, and is duly licensed and qualified
to do business in all jurisdictions in which the conduct of its business or the
ownership or leasing of its assets requires it to be licensed or qualified to do
business. Schedule 2.1 contains a list of all jurisdictions where the investor
is qualified to do business and all licenses or other authorizations held by the
investor.
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(b) Each of SpecTran and its Affiliates (as defined in the Limited
Liability Company Agreement of the Company) that is a party to any Operative
Agreement (as defined below) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2.2 AUTHORITY. Each of the investor, SpecTran and their Affiliates that is
a party to any Operative Agreement has the corporate power and authority to
enter into and perform this Agreement, the Asset Purchase Agreement by and among
the investor, SpecTran, General Cable Industries, Inc. and General Cable
Corporation, the Limited Liability Company Agreement of the Company and each of
the Related Agreements (as such term is defined in such Limited Liability
Company Agreement) (collectively, the "Operative Agreements") to which it is a
party and to consummate the transactions contemplated hereby or thereby. The
execution, delivery and performance of this Agreement and the other Operative
Agreements and the transactions contemplated hereby and thereby have been duly
and effectively authorized by all necessary action of the investor and SpecTran
and any applicable Affiliate thereof. Each of the Operative Agreements to which
the investor or SpecTran or any applicable Affiliate is a party is a valid and
binding obligation of the investor and/or SpecTran and/or such Affiliate, as
applicable, enforceable against the investor and/or SpecTran and/or such
Affiliate in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights generally,
and subject to judicial discretion in the enforcement of equitable remedies.
2.3 TITLE TO ASSETS AND CONDITION. The investor owns outright and has good
and valid title to the Assets. The Assets are not subject to any claims, liens,
mortgages, charges or other encumbrances of any kind, except for the following
("Permitted Liens"): (a) liens for taxes, assessments, governmental charges and
liens not yet due and payable; (b) liens imposed by any federal, state or local
statute, rule, ordinance, regulation, rule, code, order or requirement, such as
materialmen's, mechanics, carriers, workmen's and repairmen's liens and other
similar liens arising by operation of law, which will not have a material
adverse effect on the Assets taken as a whole; and (c) liens upon any equipment
purchased or leased by the investor which are created directly in connection
with such purchase or lease to secure payment of the purchase price or lease
obligation, all of which are set forth on Schedule 2.3. The investor is not in
violation of any regulation, ordinance, law, order or other requirement relating
to any of its property, real or personal, connected with or related to the
Assets or the investor's business. There are no changes in any such regulation,
ordinance, law, order or other requirement affecting any such property pending
or, to the best knowledge of the investor, threatened or under consideration,
which might prohibit the Company from continuing the present use of such
property or from using such property for the purpose for which it was acquired,
or which might curtail the present use of such property.
2.4 NO VIOLATION; CONSENTS OF THIRD PARTIES. The execution, delivery and
performance by the investor of this Agreement and the other Operative Agreements
by and among the investor, SpecTran (or any Affiliate of SpecTran that is a
party to any Operative Agreement) and other parties, and the consummation of
the transactions contemplated hereby
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and thereby, do not and will not (a) violate or conflict with the certificate of
incorporation or by-laws of the investor or SpecTran or such Affiliate; (b)
subject to receipt of the consents and approvals referred to in Schedule 2.4,
conflict with, result in the breach or termination of, or constitute a default
or make effective a right of cancellation, acceleration or first refusal under
(i) any debt agreement or debt instrument or (ii) any other material lease,
agreement, contract, commitment or other instrument to which the investor or
SpecTran or such Affiliate is a party or by which any of their respective
properties is bound; (c) constitute a violation of any law, statute, regulation,
ordinance, order or regulation applicable to the investor or SpecTran or any of
their respective properties; or (d) result in the creation of any lien,
encumbrance or security interest upon any property of the investor or SpecTran
(or its Affiliates), other than Permitted Liens. No consent, approval or
authorization of, or designation, declaration or filing with, any governmental
agency or body is required on the part of the investor or SpecTran (or its
Affiliates) in connection with the execution, delivery and performance of this
Agreement and the other Operative Agreements to which it is a party, except for
(a) transfer and other tax forms, if any, required in connection with the
transfer of the Assets and (b) items listed on Schedule 2.4.
2.5 INVENTORY. Except to the extent indicated on Schedule 2.5, all
inventory included in the Assets consists of raw materials, work in process, or
finished goods, merchantable and suitable for filling current orders, and such
items are not obsolete, are of a quality and quantity usable and salable in the
ordinary course of business, and any inventory reserves or write-downs in the
Financial Statements are in accordance with GAAP.
2.6 ACCOUNTS RECEIVABLE. All accounts receivable included in the Assets and
the Liabilities arise out of arm's-length sales made in the ordinary course of
the investor's business and not out of any sales to a person, firm, or
corporation which is an employee or Affiliate of the investor or SpecTran
(except for receivables arising out of sales to SpecTran Specialty Optics
Company), or controlled by an employee or Affiliate of the investor or
SpecTran. All such accounts receivable are validly owing, are not in dispute,
are not subject to any setoff, allowance or right of return, and are fully
collectible in the ordinary course of business. The goods giving rise to such
accounts receivable have been shipped and delivered to the account debtor, and
to the investor's knowledge, accepted by the account debtor.
2.7 FINANCIAL STATEMENTS. The unaudited balance sheet of the investor as of
December 31, 1995, and the related statements of income and retained earnings,
and statements of cash flow for the year then ended, as provided to the Company,
copies of which financial statements are attached hereto as Schedule 2.7 and
made a part hereof (collectively, the "Financial Statements"), are true, correct
and complete in all respects and fairly present in all material respects the
financial position of the investor as of such date and the results of its
operations and cash flows and changes in financial position for the period then
ended, and have been prepared in conformity with GAAP applied on a consistent
basis. Since December 31, 1995, there have been no material adverse changes in
the financial condition of the investor or the Assets and the investor has not
had any increase in liabilities since such date other than customary commercial
payables arising in the ordinary course of business.
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2.8 ASSETS NECESSARY TO THE BUSINESS. The Assets constitute a portion of
the assets used in connection with the investor's business. The Assets, together
with the assets purchased, or to be purchased, by General Cable Industries, Inc.
from the investor and contributed to the Company constitute all of the assets
used to carry on the investor's business as presently conducted.
2.9 LITIGATION. There is no litigation, proceeding, government
investigation or claim pending or, to the investor's knowledge, threatened
against the investor or SpecTran or relating to the Assets, the Liabilities, or
the investor's business; nor does the investor or SpecTran know of any basis for
any such litigation, proceeding, government investigation or claim.
2.10 COMPLIANCE WITH LAW. Since December 31, 1995, the investor has
conducted, and is now conducting, its operations in compliance in all material
respects with all applicable laws, rules, regulations and court or
administrative orders and processes (including, without limitation, any that
relate to health and safety, environmental protection and pollution control,
sale and distribution of products and services, anti-competitive practices,
ERISA, employee benefits, anti-discrimination, equal opportunity and fair
employment practices (including the Americans with Disabilities Act) and
improper payments). The investor has not violated any statute, order, rule, or
regulation which would prevent the consummation of the transactions contemplated
herein.
2.11 LICENSES. Attached hereto as Schedule 2.11 is a true and complete list
and brief description of all licenses, permits, franchises, authorizations and
approvals (collectively, "Licenses") issued or granted to, or held by the
investor. All such Licenses are valid and in full force and effect, and no
proceedings or actions with respect to the suspension, cancellation or any other
aspect of any of them is pending or, to the investor's knowledge, threatened,
and the investor does not know of any basis therefor. The Licenses are all of
the licenses, permits, franchises, authorizations and approvals necessary in
connection with the operation of the investor's business as it is presently
conducted. Neither the investor nor any third party has any obligation to pay or
right to receive any royalty or other payment with respect to any of the
Licenses.
2.12 TAXES.
(a) The investor has filed all Tax Returns that it is or was required
to file before the date hereof. Each Affiliated Group has filed all income Tax
returns that it is or was required to file before the date hereof. All such Tax
Returns were true, complete and correct in all respects. All Taxes due and
payable by the investor or any Affiliated Group (whether or not shown on any Tax
Return) prior to the date hereof have been paid in full and there are no tax
audits pending with respect thereto and no notice of any deficiencies are
outstanding or have been removed with respect to any Taxes. No claim has been
made and there are no pending audits or investigations by any authority in a
jurisdiction where the investor or any other member of any Affiliated Group does
not file Tax Returns that the investor or such other member of an Affiliated
Group is or may be subject to taxation by an authority in that jurisdiction. The
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Financial Statements of the investor provided adequate accruals for all warrants
and reasonably anticipated taxes, interests and penalties all pending prior to
the date hereof. There are no tax liens on any of the properties or assets of
the investor, including the Assets.
(b) The investor has withheld and properly paid all Taxes required to
have been withheld and paid in connection with amounts paid or owing to any
employee, independent contractor, creditor, shareholder or other third party.
(c) There is no dispute or claim concerning any liability of the
investor or any other member of any Affiliated Group for any Taxes that has been
claimed or addressed by any authority of any jurisdiction.
(d) The investor is not a party to a tax allocation or tax sharing
agreement other than any such agreement that has been or will be terminated
prior to the date hereof and that will have no effect after such termination for
any taxable year (whether the current year, a future year or a past year).
(e) The investor has never been a member of any group of corporations
for which a consolidated, combined, unitary or other group Tax Return may be
filed other than the group of corporations of which the investor is a current
member.
(f) The investor does not have any liability for the Taxes of any
Person (i) under any statute or regulation regarding consolidated, combined,
unitary or other group tax returns, (ii) as a transferee or successor, (iii) by
contract or (iv) otherwise.
(g) As used in this Section:
"Affiliated Group" means the group of corporations or other entities
which includes the investor or SpecTran and for which a consolidated,
combined, unitary or other group Tax Return is filed.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a trust, a joint venture, an
unincorporated organization or a governmental entity (or any department,
agency or political subdivision thereof).
"Tax" means any tax, fee or other charge imposed by any government or
other authority of any jurisdiction, together with any and all fines,
penalties, additions to tax and/or interest calculated by reference
thereto.
"Tax Return" means any return, declaration, report, claim for refund
or information return or statement relating to any Tax, including any
schedule or attachment thereto, and including any amendment thereof.
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2.13 ACCURACY OF INFORMATION. Neither this Agreement, the Financial
Statements, the Schedules, the Exhibits, the Operative Agreements, nor any
certificate or document furnished or to be furnished to the Company by or on
behalf of the investor or SpecTran pursuant to or in connection with the
transactions contemplated hereby or thereby contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
contained herein or therein not misleading. The investor has delivered to the
Company true, correct and complete copies of all documents, including all
amendments, supplements or modifications thereof or waivers currently in effect
thereunder, described herein or in any Schedule or Exhibit hereto or in any
Operative Agreement.
2.14 CONDUCT OF OPERATIONS.
(a) Since December 31, 1995, the investor has used commercially
reasonable efforts to preserve its business intact, has operated its business in
the ordinary course, and there have been no changes to its business or
operations since that date, that has had or would have a material adverse effect
on the business, assets, properties, operations or liabilities of the investor
or any of the investor's relationships with its employees or third parties
(including, without limitation, customers and suppliers).
(b) From September 30, 1996 to the date hereof:
(i) the investor has used its best efforts to preserve its
business intact, has operated its business in the ordinary course, and there
have been no changes to its business or operations, that has had or would have a
material adverse effect on the Assets, Liabilities, properties or operations of
the investor or any of the investor's relationships with its employees or third
parties (including, without limitation, customers and suppliers);
(ii) there has not been any outstanding commitment by the
investor to make or commit to make any capital expenditure, addition or
improvement relating to the Assets or the investor's business; and
(iii) there has not been any declaration or payment by the
investor of any dividend or other distribution to the stockholders of the
investor.
2.15 UNDISCLOSED LIABILITIES. The investor does not have any liability,
whether known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated and
whether due or to become due, except for (i) liabilities set forth on the face
of the investor's balance sheet included in the Financial Statements (rather
than in any notes thereto) and (ii) liabilities which have arisen since December
31, 1995, in the ordinary course of business consistent with past custom and
practice, none of which arises out of or relates to any breach of contract,
breach of warranty, tort, infringement or violation of law.
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2.16 BROKERS, FINDERS. ETC. Neither the investor nor SpecTran has employed
any broker, agent or finder or incurred any liability for any brokerage fees,
agents' commissions or finders' fees in connection with the transactions
contemplated hereby or by any of the other Operative Agreements.
2.17 COMPLIANCE WITH APPLICABLE LEGAL REQUIREMENTS AND REGULATIONS. The
investor and SpecTran have complied with all applicable legal requirements and
governmental regulations which are required to be complied with by the investor
or SpecTran in order to consummate the transactions contemplated hereby and by
the other Operative Agreements.
2.18 INVESTOR'S PATENTS, TRADEMARKS, ETC. Schedule 2.18 contains a list and
brief description of all domestic and foreign patents, all rights therefor or
applications therefor, patent and know-how licenses, trade names, trademark
registrations and applications, common law trademarks, copyright registrations,
common law copyrights, and applications for any of the foregoing
("Intangibles"), owned or used in the conduct of the business of the investor,
and (ii) specifies the jurisdiction in or by which such Intangibles have been
registered, filed or issued. All such Intangibles are valid, maintained and in
full force and effect. The investor owns, or possesses adequate rights to use,
all Intangibles and all inventions, technology, processes, products, designs,
know-how, trade secrets and formulae used in the conduct of its business and (i)
there are no actual or threatened, claims, assertions or litigation (nor is
there any basis therefor) relating to its ability to use, or challenging the
validity of, the foregoing and (ii) neither the investor nor, to the knowledge
of the investor, any person employed (including as a consultant) by the investor
within the past three years has disclosed any information relating thereto, or
entered into any confidentiality agreement relating thereto, to or with any
person except (A) to or with a government authority as required by applicable
law, (B) with respect to publicly available information or (C) in the course of
his or her employment by the investor. To the knowledge of the investor, there
are no Intangibles, inventions, technology, processes, products, designs,
know-how, trade secrets or formulae currently being sold or employed or
possessed by any person that (i) may infringe any rights of the investor or (ii)
relates to the development or manufacture of any of the products developed or
manufactured by the investor. None of the operations, processes or products of
the investor infringe or violate the rights of any third party. The investor has
and continues to use all of the trademarks listed on Schedule 2.18. The investor
has affixed all required patent and trademark notices to its products in
accordance with applicable laws so as to fully protect its proprietary rights
therein.
2.19 SPECTRAN'S PATENT LICENSES. With regard to the intellectual property
which SpecTran practices or uses relating to the design, manufacture, use and/or
sale of optical fibers:
(a) SpecTran is not aware of any legal action or threatened legal
action which alleges that SpecTran's manufacture, use and/or sale of optical
fiber infringes (or contributes to or induces the infringement of) any patent,
trademark or any other intellectual property owned by any third party;
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(b) all license agreements under which SpecTran has any rights in the
field of optical fibers in the intellectual property of third parties are set
forth in Schedule 2.19;
(c) each of the agreements listed in Schedule 2.19 is a valid and
binding obligation of the parties thereto and enforceable against them according
to its terms and is in full force and effect and SpecTran is not, and to
SpecTran's knowledge the other parties thereto are not, in default of any
material term or provision thereof;
(d) SpecTran is, and to SpecTran's knowledge the other parties thereto
are, in compliance with all material terms of each agreement listed in Schedule
2.19 and there have been no threatened cancellations thereof nor outstanding
material disputes thereunder and there is no litigation, proceeding, government
investigation or claim pending or threatened against SpecTran relating to any
patent covered by any such agreement, nor does SpecTran know or have any
reasonable grounds to know of any basis for any such litigation, proceeding,
government investigation or claim; and
(e) the agreements set forth in Schedule 2.19 will permit SpecTran to
manufacture the types, quality, and quantity of optical fibers required by the
Operative Agreements, as well as to sell that optical fiber to the Company at
the prices specified in the Operative Agreements.
2.20 CONTRACTS AND LEASES. Schedule 2.20 contains a list and brief
description of all contracts, agreements, commitments, undertakings and leases
of real or personal property, in each case involving more than $10,000
(collectively, "Contracts"), to which the investor is a party relating to the
investor's business. Each of the Contracts is a valid and binding obligation of
the parties thereto and enforceable against them according to its terms and is
in full force and effect and the investor is not, and to the investor's
knowledge the other parties thereto are not, in default of any material term or
provision thereof. The investor is, and to the investor's knowledge the other
parties thereto are, in compliance with all material terms thereof and there
have been no threatened cancellations thereof nor outstanding material disputes
thereunder. Except as set forth in Schedule 2.20, the investor's rights under
the Contracts are fully assignable without the consent of any party thereto or
any third party. True, correct and complete copies of all Contracts have been
delivered to the Company.
2.21 ENVIRONMENTAL MATTERS. The investor has not received any claim,
notice, order, directive, or information request from the United States
Environmental Protection Agency, any state environmental protection agency or
from any other agency or branch of local, state or federal government (each, an
"Environmental Agency"), or any claim or notice from any private corporation or
person alleging any violation of any federal or state environmental law,
ordinance, regulation or order applicable to the investor, the investor's
business or its operations ("Environmental Laws") since May 23, 1995
(collectively, "Environmental Claims"). To the investor's actual knowledge, all
Environmental Claims received by the investor during the time period from, and
including, September 1, 1986 to, and including, May 23, 1995 are set forth in
Schedule 2.21. No investigation, administrative order, consent order, and
agreement,
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litigation or settlement with respect to any hazardous substances (as defined
by the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. [Sections] 9601 ET SEQ.) exists or, to the investor's knowledge, is
threatened with respect to the investor, the investor's business or its
operations. All environmental facility, operating and other permits,
registrations and authorizations ("Environmental Permits") required by any
Environmental Agency for the investor, the investor's business or its
operations have been obtained and are in effect. The investor has complied in
all material respects with and is not in default under any Environmental Laws.
Except as set forth in Schedule 2.21, neither the Assets nor any other assets
of the investor have been contaminated by hazardous waste (as defined by the
Resource Conservation and Recovery, Act, 42 U.S.C. [Sections] 6901 ET SEQ.)
or been used for solid or hazardous waste storage or disposal.
3. INDEMNIFICATION; INDEMNIFICATION PROCEDURE, ETC.
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3.1 INVESTOR INDEMNIFICATION. Each of the investor and SpecTran agrees to
defend, indemnify and hold harmless the Company and each of its members,
officers, employees and agents, and each of their successors and assigns (each,
a "Company Indemnitee") from and against, and to pay directly, or reimburse the
applicable Company Indemnitee(s) with respect to, all claims, suits, actions and
proceedings (formal and informal), and related judgments, deficiencies, damages,
settlements, taxes, liabilities (whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated and whether due or to become due), losses,
costs, fees and expenses (including, without limitation, reasonable attorneys'
fees and disbursements) (collectively, "Losses") asserted by any person or
entity (including any other party hereto or any third party) against any Company
Indemnitee or incurred or suffered by any Company Indemnitee, which arise out
of, result from or relate to:
(i) any breach of any representation or warranty by the
investor or SpecTran, except that SpecTran shall have no liability
whatsoever for any breach of Sections 2.10, 2.11, 2.12, 2.14, 2.15,
2.20 and 2.21;
(ii) any failure by the investor to perform any agreement or
covenant, or to make any payment, required by this Agreement;
(iii) any and all Losses arising out of or resulting from the
ownership of the Assets, assumption of the Liabilities or the
operation of the investor's business or any predecessor of the
investor's business (including without limitation, the manufacture of
products, regardless of whether sold before or after the date hereof,
the provision of services and giving of warranties and warnings by the
investor or the investor's predecessors) on or before the date hereof;
(iv) without duplication of any indemnification provided above,
any and all liabilities not assumed by the Company under this
Agreement; and
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(v) any and all Losses arising out of or resulting from the
failure to obtain any consent required for the transfer to the Company
of the lease agreement dated November 10, 1995 between the investor
and Marc C. Yellin and the lease agreement dated February 6, 1996
between the investor and Fabrilock, Inc.
The Company or any Company Indemnitee is not required to commence
litigation or take any other action against any third party prior to making a
claim against the investor or SpecTran hereunder. Notwithstanding anything to
the contrary contained herein, in no event will SpecTran have any
indemnification obligations hereunder with respect to item (iii) or (iv) of this
Section 3.1, and the Company will seek to enforce such indemnification
obligations only against the investor.
3.2 COMPANY INDEMNIFICATION. The Company agrees to defend, indemnify and
hold harmless the investor and SpecTran and their respective directors,
officers, stockholders, employees and agents, and each of their successors and
assigns (each, an "Investor Indemnitee") from and against, and to pay directly,
or reimburse the applicable Investor Indemnitee(s) with respect to, all claims,
suits, actions and proceedings (formal and informal), and related judgments,
deficiencies, damages, settlements, taxes, liabilities (whether known or
unknown, whether asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated and whether due or to
become due), losses, costs, fees and expenses (including, without limitation,
reasonable attorneys' fees and disbursements) (collectively, "Losses") asserted
by any person or entity (including any other party hereto or any third party)
against any Investor Indemnitee or incurred or suffered by any Investor
Indemnitee, which arise out of, result from, or relate to the ownership or use
of the Assets after the date hereof or the Liabilities assumed by the Company
hereunder.
Neither the investor nor SpecTran is required to commence litigation
or take any other action against any third party prior to making a claim against
the Company hereunder.
3.3 INDEMNIFICATION PROCEDURE.
(a) The Company Indemnitee or the Investor Indemnitee, as the case
may be (the "Indemnitee"), shall give prompt (I.E., within twenty (20) days)
written notice (a "Claim Notice") to the investor, SpecTran or the Company, as
the case may be (the "Indemnitor"), of the following (but any failure to give a
Claim Notice will not relieve the Indemnitor of any obligations hereunder except
to the extent the Indemnitor can demonstrate it is prejudiced by such failure):
(i) the claim by such Indemnitee of any Losses under Section 3.1
or Section 3.2;
(ii) receipt by such Indemnitee of any demand, claim or notice of
any circumstances that might give rise to Losses under Section 3.1 or
Section 3.2; and
-12-
13
(iii) receipt by such Indemnitee of notice of the commencement of
any action, proceeding or investigation (an "Action") that might
result in Losses under Section 3.1 or Section 3.2.
(b) If a Claim Notice is based on an Action, the Indemnitor (upon
written notice to the applicable Indemnitee within fifteen (15) days after the
date of the Claim Notice (a "Defense Notice")) shall have the right to elect,
exercising reasonable judgment, to defend or compromise such Action at its own
expense. Until receipt of a Defense Notice, the Indemnitee may take at the
expense of the Indemnitor any action it reasonably believes necessary to
preserve its rights with respect to such Action. The Indemnitor may not settle
any Action without the prior written consent of the applicable Indemnitee, which
consent shall not be unreasonably withheld or delayed.
If a Claim Notice is not based on an Action, the Indemnitor shall give
notice to the applicable Indemnitee within thirty (30) days whether it will
indemnify or assume responsibility for such a Loss.
(c) If the Indemnitor fails to issue a Defense Notice or otherwise
fails to defend any Action or claim, the Indemnitee shall have the right, but
not the obligation, to undertake the defense of and to compromise or settle
(exercising reasonable judgment), the Action or claim on behalf, for the account
and at the risk, of the Indemnitor.
(d) In all cases, the Indemnitor shall keep the Indenmitee informed
regarding any claim or proceeding it is defending on a timely basis. Each party
shall cooperate reasonably with the other party in the investigation and
analysis of such claim or proceeding, and afford the other party reasonable
access to such relevant information as it may have in its possession and to its
personnel at its own expense.
3.4 LIMITATIONS.
(a) The amount of any Losses for which indemnification is provided
under Section 3.1 shall be net of any amounts actually recovered by the Company
Indemnitee with respect thereto under insurance policies; PROVIDED THAT no
Company Indemnitee shall have any obligation to seek recovery of any such
amounts under any insurance policies, and PROVIDED FURTHER that no
indemnification payments otherwise due under Section 3.1 shall be delayed or
offset in anticipation of the receipt by a Company Indemnitee of any insurance
proceeds. If a Company Indemnitee receives any insurance payments with respect
to Losses for which indemnification payments have previously been made, such
Company Indemnitee shall promptly pay such insurance proceeds to the Indemnitor.
(b) Notwithstanding anything in this Agreement to the contrary, (i)
the indemnification obligations of SpecTran under this Section 3 shall expire
five (5) years after the date hereof, (ii) SpecTran shall have no liability for
any Losses for which indemnification is provided hereunder until the total of
all such Losses exceeds $75,000 (but after the total of all
-13-
14
such Losses exceeds $75,000, SpecTran shall be liable for the full amount of
such Losses), and (iii) the total indemnification obligations of SpecTran for
any and all Losses asserted under this Section 3 shall in no event exceed an
amount equal to the Purchase Price as defined in the Asset Purchase Agreement by
and among the investor, SpecTran, General Cable Industries, Inc. and General
Cable Corporation.
(c) In no event will any Indemnitor (other than the investor) be
liable for any incidental, consequential, or special damages (including but not
limited to damages for lost profits) incurred by any Indemnitee, except to the
extent that such damages are actually determined or awarded to a third party and
required to be paid by the Indemnitee.
3.5 REMEDIES CUMULATIVE. The remedies provided herein shall be cumulative
and shall not preclude the assertion by any party hereto of any other rights or
the seeking of any other remedies against any other party hereto.
4. MISCELLANEOUS.
-------------
4.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of laws.
4.2 ASSIGNMENT. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns. Except with respect to a permitted transferee under the Limited
Liability Company Agreement of the Company, this Agreement shall not be assigned
by the investor without the prior written consent of the Company or by the
Company without the prior written consent of the investor.
4.3 ENTIRE AGREEMENT. This Agreement, together with the schedules and
exhibits attached hereto and the documents referred to herein, constitutes the
entire agreement and understanding among the parties and supersedes any prior
written or oral understandings between them respecting the subject matter of
this Agreement. This Agreement may be amended or modified only in a writing
signed by the investor and the Company that specifically refers to this
Agreement.
4.4 CAPTIONS. The captions contained in this Agreement are for reference
purposes only and are not part of this Agreement.
4.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be an original and all of which together will
constitute one and the same instrument.
-14-
15
IN WITNESS WHEREOF, the panics hereto have caused this Agreement to be duly
executed as of December 23, 1996.
APPLIED PHOTONIC DEVICES, INC.
By: /s/ Glenn E. Moore
------------------------------
Print Name: GLENN E. MOORE
----------------------
Title: C.E.O.
---------------------------
SPECTRAN CORPORATION
By: Raymond E. Jaeger
------------------------------
Print Name: Raymond E. Jaeger
----------------------
Title: Chairman
---------------------------
ACCEPTED AND AGREED TO:
GENERAL PHOTONICS, LLC
By: /s/ Crawford L. Cutts
--------------------------
Print Name: Crawford L. Cutts
------------------
Title: President
-----------------------
Date: December 23, 1996
-15-
16
EXHIBIT A
ASSETS*
Description of Asset Asset Value
- - -------------------- -----------
Accounts Receivable $1,049,067.00
Prepaid/Other Assets $ 12,758.00
Fixed Assets, net $ 978,162.00
Other Non-current Assets $ 11,688.00
Goodwill, net $4,807,673.00
-------------
Total: $6,859,348.00
-------------
* Amounts listed above are based on November 30, 1996 balance sheet and are
subject to adjustment in accord with Closing Financial Statements effective
as of December 31, 1996.
-16-
17
EXHIBIT B
LIABILITIES*
Description of Liability Amount
- - ------------------------ ------
Trade A/P $242,613.00
Accrued Trade A/P $239,003.00
Sales Tax Payable $1,643.00
Accrued Salaries & Wages $125.00
Accrued Bonus $53,660.00
Accrued Vacation Pay $44,311.00
-----------
Total: $581,355.00
-----------
* Amounts listed above are based on November 30, 1996 balance sheet and are
subject to adjustment in accord with Closing Financial Statements effective
as of December 31, 1996.
-17-
18
SPECTRAN-GCC
------------
Schedules to the Investor Representations, Contribution Agreement
and Subscription Agreement
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 1 of 14
19
SCHEDULE 2.1
a) JURISDICTION WHERE INVESTOR IS QUALIFIED TO DO BUSINESS
Connecticut
b) SEE SCHEDULE 2.11 IN REGARD TO ALL LICENSES OR OTHER AUTHORIZATIONS HELD BY
INVESTOR.
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 2 of 14
20
SCHEDULE 2.3 LIENS
(a) LIENS FOR TAX ASSESSMENTS, GOVERNMENTAL CHARGES AND LIENS NOT YET DUE AND
PAYABLE.
None.
(b) MECHANICS LIENS AND OTHER SIMILAR LIENS ARISING BY OPERATION OF LAW.
None.
(c) LIENS UPON ANY EQUIPMENT PURCHASED OR LEASED BY INVESTOR WHICH ARE CREATED
DIRECTLY IN CONNECTION WITH SUCH PURCHASE OR LEASE TO SECURE PAYMENT OF THE
PURCHASE PRICE OR LEASE OBLIGATION.
1) Machinery and equipment are subject to a blanket UCC-1 financing statement
(lien) in favor of Fleet Bank of Massachusetts, National Association, 75 State
Street, Boston, Massachusetts, which will be released upon the closing of this
transaction.
2) Equipment/Bench Top Power Meter, signed 10/22/93 with Copelco Leasing,
customer #2734301, 1-800-247-8133 ext. 4103.
3) Auto/Volvo 1994, signed 5/16/94 with Volvo Auto Finance, customer
#326440846-5, 1-800-358-6600.
4) Auto/Dodge Caravan 1994, signed July 29, 1994 with G.E. Capital Lease,
#00-3030-28205, 1-800-488-5208.
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 3 of 14
21
SCHEDULE 2.4 CONSENTS AND APPROVALS
1) Consent for assignment of Permit to Discharge to the Waters of the State of
Connecticut pursuant to Connecticut General Statutes Section 22a-430 for APD
plant located in Brooklyn, Connecticut and pending Application for a Permit to
Discharge to the Waters of the State of Connecticut for APD plant located in
Dayville, Connecticut.
CONSENTS TO THE ASSIGNMENT OF THE FOLLOWING AGREEMENTS ARE REQUIRED FROM
THE OTHER PARTIES TO SUCH AGREEMENTS AND INVESTOR WILL USE ITS BEST EFFORTS TO
OBTAIN SUCH CONSENTS PROMPTLY FOLLOWING THE CLOSING:
2) Service Agreement among APD, Southern New England Telephone Company and SNET
America, Inc. dated March 18th, 1996.
3) Equipment Lease between APD and Copelco Leasing Corporation, One Mediq Plaza,
Pennsauken, New Jersey, 08110 dated October 22, 1993.
4) Lease Agreement between APD and Marc C. Yellin, 62 Cambridge Lane, Boynton
Beach, Florida 33436 dated November 10, 1995 for property located at 50 Tiffany
Street, Brooklyn, Connecticut.
5) Lease Agreement between APD and Fabrilock, Inc. dated February 6, 1996 for
property located at 300 Lake Road, Dayville, Connecticut.
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 4 of 14
22
SCHEDULE 2.5 INVENTORY EXCEPTIONS
None.
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 5 of 14
23
SCHEDULE 2.7 FINANCIAL STATEMENTS
Financial Statements consisting of Unaudited Balance Sheet of Investor as of
December 31, 1995, and related statements of income and retained earnings, and
statements of cash flow for the year then ended.
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 6 of 14
24
Periods 12 to 12 Fiscal Year 1995
Current
This Year
Net Value
Fleet Bank Operating 0.00
Fleet Bank Payroll 350.48
First National 0.00
Fleet Bank & First (APD) 170,204.48
------------
Total Cash 170,555.32
Trade A/R 1,657,775.48
Allowance Doubtful Accounts 46,681.13(-)
------------
Total A/R 1,611,094.35
Incoming Inspection 0.00
Raw Materials 841,484.20
Profit in Inventory 374,859.00
Profit Material-Obsolescence Res 0.00
------------
Total Raw Material 1,216,343.20
Work in Process 418,776.00
Finished Goods 287,110.90
FGI-Obsolescence Reserve 44,092.00(-)
------------
Total FGI 243,018.90
Total Inventory 1,878,138.10
Prepaid Insurance 0.00
Prepaid Audit 0.00
Employee Advances 0.00
Misc. Non-Trade Receivable 0.00
Other Current Assets 0.00
------------
Total Prepaid/Other Assets 0.00
Federal Deferred Tax Current 0.00
State Deferred Tax - Current 0.00
Allowance Deferred Tax Current 0.00
------------
Total Deferred Tax - Current 0.00
Total Current Assets 3,659,787.77
25
Periods 12 to 12 Fiscal Year 1995
Current
This Year
Net Value
Buildings 0.00
Building Improvements 23,459.70
CIP - Building 0.00
Machinery & Equipment 697,083.44
CIP - Machinery & Equipment 0.00
Computer Equipment 0.00
Furniture & Fixtures 9,425.00
Automobiles 0.00
----------
Total assets 729,968.14
Accum Depr Buildings 0.00
Accum Depr Building Improvement (18,652.00)
Accum Depr Machinery & Equip (350,844.81)
Accum Depr Computer Equipment 0.00
Accum Depr Furniture & Fixture (15,828.00)
Accum Depr Automobiles 0.00
------------
Total Accum Depreciation (385,324.81)
Net Fixed Assets 344,643.33
I/C SSOC 11,533.62
I/C CFT (1,852,089.34)
I/C Corporate (343,154.00)
------------
Total I/C & Investment (2,183,709.72)
Federal Deferred Tax L/T 0.00
Store Deferred Tax L/T 0.00
Allow Deferred Tax L/T 0.00
------------
Total L/T Tax 0.00
Other Non-Current Assets 0.00
------------
Total Other L/T Assets 0.00
Goodwill 3,255,165.48
Accum Amortization Goodwill (126,589.77)
-------------
Goodwill, Net 3,128,575.71
Total L/T Assets 1,289,509.32
26
Periods 12 to 12 Fiscal Year 1995
Current
This Year
Net Value
Total Assets 4,949,297.09
============
Trade A/P 75,744.65
Accrued Trade A/P 271,426.88
FICA Taxes Payable 0.00
Federal W/H Tax Payable 0.00
State W/H Tax Payable 0.00
United Way W/H Payable 30.00
401K W/H Payable 3,022.91
BAW W/H Payable 0.00
ESPP W/H Payable 41.50
Other Payroll W/H Payable 0.00
Outstanding Funded Claims Pay 0.00
Sales Tax Payable 361.11
Other - A/P 0.00
------------
Total Accounts Payable 349,904.83
Accrued Salaries & Wages (7.00)
Accrued Bonus 0.00
Accrued 401K Contribution 1,228.09
Accrued Defined Contribution 12,407.00
Accrued Vacation Pay 29,255.04
Accrued Insurance 0.00
Accrued Health Insurance 0.00
Accrued Legal Fees 0.00
Accrued Audit Fees 0.00
Accrued FICA Taxes 0.00
Accrued Unemployment Taxes 0.00
Accrued Defined Benefit 0.00
Accrued Other 0.00
Accrued Health Insurance Term 31,938.90
Accrued Commissions 0.00
------------
Accrued Rent Expense 0.00
Total Accrued Liabilities 74,822.03
Accrued Fed Tax Payable 0.00
Accrued State Tax Payable 0.00
------------
Accrued Tax Payable 0.00
Other L/T Liabilities 0.00
27
Periods 12 to 12 Fiscal Year 1995
Current
This Year
Net Value
Total Liabilities 424,726.86
Common Stock 0.00
Intercompany Investment 4,412,377.74
Paid-In Capital 0.00
Prior Years Retained Earnings 0.00
Current Year Retained Earnings 0.00
------------
Total Liabilities & Equity 4,837,104.60
============
28
SCHEDULE 2.11 LICENSES
1) See Schedule 2.18
2) Permit to Discharge to the Waters of the State of Connecticut pursuant to
Connecticut General Statutes Section 22a-430 for APD plant located in Brooklyn,
Connecticut and pending Application for Permit to Discharge to the Waters of the
State of Connecticut for APD plant located in Dayville, Connecticut.
3) Zoning Permit, Town of Killingly, Connecticut, for change in use of Aquifer
Protection Zone with respect to property located at 300 Lake Road, Dayville,
Connecticut.
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 7 of 14
29
SCHEDULE 2.14 CAPITAL EXPENDITURES
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 8 of 14
30
APD, INC.
CAPITAL PROJECTS 1996
PROJECT NUMBER DESCRIPTION SPENT TO DATE BALANCE REMAINING TOTAL PROJECT
- - -------------- ----------- ------------- ----------------- -------------
P200109 Gnata Hot Foil Printer $ 11,794.00 $ 27,519.00 $ 39,313.00
P200119 Leasehold Improvements $ 29,526.00 $ 3,474.00 $ 33,000.00
P200130 2 1/2" Sterling Extruder $ 38,436.00 $ 44,721.00 $ 83,157.00
P200134 Gem Solo 4 Opaque Printer $ 30,816.00 $ 4,644.00 $ 35,460.00
P200140 Parts for Tensil Tester $ 2,000.00 n/a $ 2,000.00
P200142 Expansion Units Phone n/a $ 6,762.00 $ 6,762.00
UV Inking Line n/a $175,000.00 $175,000.00
----------- ----------- -----------
Total $112,572.00 $181,762.00 $374,692.00
31
SCHEDULE 2.18 PATENTS AND TRADEMARKS
1) See attached Notice of Acceptance of Use for the Trademark OPTI-PAK.
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 9 of 14
32
UNITED STATES DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
WASHINGTON, D.C. 20231
JUN 17 1993
NOTICE OF ACCEPTANCE OF STATEMENT OF USE
TM 3 ATTORNEY
James E. Alix REFERENCE NUMBER:
Chilton, Alix & Van Kirk
750 Main Street, Suite 610 APDI/TO1/00/
Hartford, CT 06103-2708
- - --------------------------------------------------------------------------------
SERIAL NUMBER: 74/264120
MARK: OPTI-PAK
OWNER: Applied Photonic Devices, Inc.
- - --------------------------------------------------------------------------------
The statement of use filed in regard to the above-identified application has
been accepted. This acceptance signifies that the statement of use is accepted
in all respects and that the mark is entitled to be registered. Accordingly, the
registration will issue in due course barring any extraordinary circumstances.
- - --------------------------------------------------------------------------------
33
SCHEDULE 2.19 LICENSES AND TRADEMARKS OF SPECTRAN
1) Patent License Agreement between Western Electric Company Incorporated
(currently Lucent Technologies).
2) Agreement between Gulf & Western Manufacturing Company and SpecTran
Corporation dated October 18, 1983.
3) Agreement between Aetna Telecommunications Laboratories and SpecTran
Corporation dated January 21, 1985.
4) License Agreement between Corning, Inc. and SpecTran Corporation dated
January 1, 1991.
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 10 of 14
34
SCHEDULE 2.20 CONTRACTS AND LEASES (P.1 OF 3)
a) THE FOLLOWING IS A LIST OF CONTRACTS OF APD INVOLVING MORE THAN $10,000.
1) Supplier Agreement with ATL Connect dated November 2, 1992.
2) Sales Agency Agreement with Thaw Sales and Marketing dated June 7, 1991.
3) Sales Agency Agreement with CMA, Inc. dated June 9, 1994.
4) Sales Agency Agreement with Manufacturers Agents Representatives dated June
1, 1992.
5) Sales Agency Agreement with C&W Fiber Optic dated February 1, 1993.
6) Sales Agency Agreement with KJS Marketing dated September 1, 1994.
7) Sales Agency Agreement with Nutech Electronics, Inc. dated September 1, 1994.
8) Sales Agency Agreement with Innovative Technical Sales, Inc. dated March 1,
1993.
9) Sales Agency Agreement with Paul Ericson & Associates, Inc., dated January 1,
1994.
10) Sales Agency Agreement with Jaso & Associates, dated May 8, 1994.
11) Sales Agency Agreement with Cartwright & Bean, Inc. dated May 1, 1994.
12) Sales Agency Agreement with Data Connect, Inc. dated July 9, 1994.
13) Sales Agency Agreement with Westerly Associates, Inc. dated June 16, 1994.
14) Sales Agency Agreement with DCS Group, Inc., dated October 1, 1996.
15) Agreement with Copelco Leasing Corporation dated October 22, 1993.
16) Lease Agreement with Mark C. Yellin dated November 13, 1995 for 50 Tiffany
Street, Brooklyn, Connecticut.
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 11 of 14
35
SCHEDULE 2.20 CONTRACTS AND LEASES (CONT.) (p.2 of 3)
17) Lease Agreement with Fabrilock, Inc. dated February 6, 1996 for 300 Lake
Road, Dayville, Connecticut.
18) Employment Agreement among Irving N. Dwyer, Applied Photonic Devices, Inc.
and SpecTran Corporation dated May 23, 1995.
19) Employment Agreement among David P. Davia, Applied Photonic Devices, Inc.
and SpecTran Corporation dated May 23, 1995.
20) Non-Competition Agreement among Irving N. Dwyer, Applied Photonic Devices,
Inc., APD Acquisition Corp. and SpecTran Corporation dated May 23, 1995.
21) Non-Competition Agreement among David P. Davia, Applied Photonic Devices,
Inc., APD Acquisition Corp., and SpecTran Corporation dated May 23, 1995.
22) AT&T CustomNet (sm) Service Flex Plan, dated September 26, 1994.
23) Service Agreement with SNET America, Inc., dated March 18, 1996.
24) Agreement between Applied Photonic Devices, Inc. and Brugg Telecom, dated
December 18, 1995.
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 12 of 14
36
SCHEDULE 2.20 CONTRACTS AND LEASES (CONT.) (p.3 of 3)
*25) Loan and Security Agreement among SpecTran Corporation, SpecTran Specialty
Optics Company, Applied Photonic Devices, Inc., SpecTran Communication Fiber
Technologies, Inc. and Fleet National Bank, dated April 25, 1996.
With respect to the above Loan and Security Agreement, Fleet has agreed to
release the lien on the Assets of APD and to release APD from certain of the
restrictive covenants therein as further described in a letter to John F. Lynch,
Fleet National Bank from Bruce A. Cannon, SpecTran Corporation dated September
16, 1996, such release to be effective upon consummation of the transaction.
*26) $12,000,000 Revolving Note in favor of Fleet National Bank, dated April 25,
1996.
*27) $5,000,000 Term Note in favor of Fleet National Bank, dated April 25, 1996.
*28) $5,000,000 Mortgage Note in favor of Fleet National Bank, dated April 25,
1996.
b) CONTRACTS REQUIRING CONSENT TO ASSIGNMENT ARE SET FORTH ON SCHEDULE 2.4
HERETO.
*These agreements will not be assigned to the Company.
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 13 of 14
37
SCHEDULE 2.21 ENVIRONMENTAL MATTERS
1) Investor holds from the Connecticut Department of Environmental Protection
one (1) Permit to Discharge to the Waters of the State of Connecticut pursuant
to Connecticut General Statutes Section 22a-430 for its plant in Brooklyn,
Connecticut and one (1) pending Application for a Permit to Discharge to the
Waters of the State of Connecticut for its plant in Dayville, Connecticut. These
permits are for water discharge consisting of contact cooling water from APD's
cable-applied, extrusion coating process for fiber optic cables for its plants
in Brooklyn, Connecticut and Dayville, Connecticut. The process waste water is
discharged to the local sanitary sewer.
2) Zoning Permit, Town of Killingly, Connecticut, for change in use of Aquifer
Protection Zone with respect to property located at 300 Lake Road, Dayville,
Connecticut.
3) Please refer to the copy of the Phase I Environmental Site Assessment of 50
Tiffany Street, Brooklyn, Connecticut prepared by Atlantic Environmental
Services, Inc. dated April 28, 1995 (revised May 4, 1995) which has been
previously provided by APD.
4) The plants at Brooklyn, Connecticut and Dayville, Connecticut are both small
quantities generators of hazardous waste. Both plants' quantities of hazardous
waste are disposed of by Laidlaw Environmental Services North East, Inc., 221
Sutton Street, North Andover, MA, (508)683-1002. APD files for its plants in
Brooklyn, Connecticut and Dayville, Connecticut biannual hazardous waste reports
with the Connecticut Department of Environmental Protection in connection with
waste disposal as a small quantities generator.
Schedules to the Investor Representations, Contribution Agreement and
Subscription Agreement
Page 14 of 14