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STANDSTILL AGREEMENT
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STANDSTILL AGREEMENT (the "Agreement"), dated as of December 23, 1996, by
and between General Cable Corporation ("GCC") and SpecTran Corporation
("SpecTran").
General Cable Industries, Inc., a Delaware corporation and direct
wholly-owned subsidiary of GCC ("GCI"), and Applied Photonics, Inc., a Delaware
corporation and direct wholly-owned subsidiary of SpecTran ("APD"), are parties
to a Limited Liability Company Agreement of General Photonics LLC, dated as of
the date hereof (the "LLC Agreement"), which sets forth certain rights,
obligations and understandings as to various matters, including, without
limitation, the capital structure, operation and management of their joint
venture.
In order to induce SpecTran to cause APD to enter into the LLC Agreement,
GCC agreed to enter into this Agreement with SpecTran.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following respective meanings:
(a) "Material Breach" means, with respect to this Agreement, any breach
of this Agreement which is not cured within 30 days after receipt of written
notice thereof from the non-breaching party.
(b) "Non-Competition Agreement" means the Non-Competition Agreement,
dated as of the date hereof, among GCI, GCC, APD, SpecTran and General
Photonics, LLC.
(c) "SpecTran Securities" means securities issued by SpecTran and/or
any of its subsidiaries and any rights or options to acquire such securities.
(d) All other capitalized terms used but not otherwise defined herein
shall have the meaning ascribed to such terms in the LLC Agreement.
2. STANDSTILL. GCC hereby agrees that it will not, and will cause its
Affiliates (and their respective officers and directors) not to, directly or
indirectly, alone or in association with any other person or entity, act or take
any of the following actions, without the prior written consent of the Company:
(a) act alone or as part of a "group" (as such term is defined under
Section 13(d) of the Securities Exchange Act of 1934, as amended ("Exchange
Act")), to acquire, by purchase, offer to purchase, merger or otherwise, any
SpecTran Securities;
(b) make, or in any way participate in, any "solicitation" of "proxies"
to vote (as such terms are used under the rules of the Exchange Act) or seek to
advise or influence any
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person or entity with respect to the voting of any SpecTran Securities or
initiate any stockholder proposal;
(c) induce or attempt to induce any person to seek election to
SpecTran's Board of Directors or seek the removal of any member of such Board;
(d) make any public announcement with respect to any transaction or
proposed or contemplated transaction between SpecTran (or any of its
subsidiaries) or any of its (or their) security holders and GCC and any of its
Affiliates, including, without limitation, any tender or exchange offer, merger
or other business combination or acquisition of a material portion of the assets
of SpecTran;
(e) make any public announcement or disclose an intention to other
persons concerning any plans, proposals or intentions of GCC with respect to the
matters referenced in clauses (a) or (b); or
(f) advise, assist or knowingly encourage, finance or arrange financing
for any other person in connection with any of the foregoing.
3. GCC'S REPRESENTATIONS. GCC represents and warrants to SpecTran that, as
of the date hereof, neither it nor any of its Affiliates is the beneficial owner
of any SpecTran Securities nor, to its knowledge, does any of its or their
respective directors or officers beneficially own any SpecTran Securities. GCC
further represents and warrants to SpecTran that (a) the execution, delivery and
performance of this Agreement by it has been duly authorized by all necessary
corporate action on its part, and (b) this Agreement has been duly and validly
executed and delivered by GCC, and assuming this Agreement constitutes the valid
and binding agreement of SpecTran, constitutes the valid and binding agreement
of GCC, enforceable against it in accordance with its terms, subject as to
enforceability to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
principles of equity.
4. PERMITTED TRANSACTIONS. Notwithstanding anything in this Agreement to
the contrary, nothing herein is intended to preclude (a) GCC from acquiring (i)
a person or entity that owns SpecTran Securities provided GCC disposes of such
SpecTran Securities as soon thereafter as is commercially practicable or (ii)
APD's Interest in General Photonics LLC pursuant to Article 10 of the LLC
Agreement or (b) any director or officer of GCC or any of its Affiliates from
acquiring, directly or indirectly, up to one percent (1%) of any class of
SpecTran Securities then issued and outstanding.
5. TERM. This Agreement shall be effective upon the execution and delivery
hereof and shall remain in full force and effect until the earlier to occur of
(a) the expiration or termination of the Non-Competition Agreement as to GCC or,
if GCC is subject to the Eighteen Month Period (as defined in the
Non-Competition Agreement), one year after the expiration of such period and (b)
the occurrence of any of the following (i) an insolvency or Bankruptcy of
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SpecTran or any of its Affiliates that is a party to the LLC Agreement or any of
the Related Agreements, (ii) a Material Breach by SpecTran or any of its
Affiliates under the LLC Agreement or any of the Related Agreements or (iii) the
occurrence of an Irreconcilable Difference under clause (iii) of the definition
thereof that was initiated by a proposal by any of the Class A Managers that
results in a termination of the LLC Agreement.
6. REMEDIES FOR BREACH. GCC agrees that irreparable damage would occur in
the event of a Material Breach. Accordingly, GCC agrees that SpecTran shall be
entitled to an injunction or injunctions to prevent Material Breaches of this
Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy which it may be entitled at law or equity.
7. CHANGES: WAIVERS. This Agreement may not be changed in any manner except
by a written agreement signed by both parties. The failure of either party to
enforce at any time any of the provisions of this Agreement shall in no way be
construed to be a waiver of any such provision, nor in any way affect the
validity of this Agreement or any part thereof or the right of either party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to be a waiver of any other or subsequent breach.
8. COUNTERPARTS. This Agreement may be executed in two or more
counterparts each of which shall be deemed to be an original, but all of such
counterparts together shall be deemed to be one and the same instrument.
9. CONTENTS OF AGREEMENT, PARTIES OF INTEREST. This Agreement sets forth
the entire understanding and agreement of the parties hereto with respect to the
subject matter hereof. All previous agreements, promises, representations,
commitments and understandings, whether verbal or written, between the parties
regarding the subject matter hereof are merged into and superseded by this
Agreement. All covenants, terms and conditions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
legal representatives, successors and permitted assigns of the parties hereto.
Nothing contained in this Agreement, express or implied, is intended to confer
upon any person or entity other than the parties hereto and their respective
successors and permitted assigns any rights or remedies under or by reason of
this Agreement.
10. ASSIGNMENT. This Agreement may not be assigned (by operation of law or
otherwise) by either party without the prior written consent of the other.
11. SECTION HEADINGS AND GENDER. The section headings herein have been
inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof. The use of masculine or any
other pronoun herein when referring to any party is for convenience only and
shall be deemed to refer to the particular party intended regardless of the
actual gender of such party.
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12. NOTICES. All notices, consents, waivers or other communications which
are required or permitted hereunder shall be in writing and shall be sufficient
if delivered personally (including by means of recognized courier service for
which a written receipt is given) or by registered or certified mail, return
receipt requested, postage prepaid, or by facsimile transmission providing a
receipt, as follows (or to such other address as shall be set forth in a notice
given in the same manner);
If to Company:
Glenn E. Moore
President and Chief Executive Officer
SpecTran Corporation
SpecTran Industrial Park
50 Hall Road
Sturbridge, Massachusetts 01566
Fax: 508-347-8826
With a required copy to:
Ira S. Nordlicht, Esq.
Hackmyer & Nordlicht
645 Fifth Avenue
New York, New York 10022
Fax: 212-421-0499
If to GCC:
Stephen Rabinowitz
President and Chief Executive Officer
General Cable Corporation
4 Tesseneer Drive
Highland Heights, Kentucky 41076
Fax: 606-572-8440
With a required copy to:
Robert J. Siverd
Executive Vice President and General Counsel
General Cable Corporation
4 Tesseneer Drive
Highland Heights, Kentucky 41076
Fax: 606-572-8444
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All such notices shall be deemed to have been given on the date
personally delivered, upon possession of a receipt establishing a facsimile
transmission was received or five (5) days after being mailed in the manner
provided above.
13. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York without giving effect to
principles of conflicts of laws.
14. CONSENT TO JURISDICTION. The parties agree to submit to the exclusive
jurisdiction of the state and federal courts in New York, New York with respect
to any litigation arising from or related to this Agreement and will not seek to
have such litigations dismissed or removed on the grounds of forum
non-conveniens.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by,
the duly authorized officers of the parties hereto and shall be effective as of
the date first hereinabove written.
GENERAL CABLE CORPORATION
By: /s/ Robert J. Siverd
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Name: Robert J. Siverd
Title: Executive Vice President
SPECTRAN CORPORATION
By: /s/ R.E. Jaeger
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Name:
Title: Chairman
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