INTERCOMPANY AGREEMENT
INTERCOMPANY AGREEMENT, dated as of May __, 1997, by and
between ▇▇▇▇▇▇▇ PLC, a corporation organized under the laws of England
("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ Netherlands Cable BV, a corporation organized under the
laws of the Netherlands and a wholly owned subsidiary of ▇▇▇▇▇▇▇ ("Cable"), and
General Cable Corporation, a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, on the date hereof the Company is a wholly-owned
subsidiary of Cable; and
WHEREAS, Cable intends to dispose of all or a substantial
portion of the shares of the common stock, par value $0.01 per share (the
"Common Stock"), of the Company owned by it by means of a United States and
Canadian public offering and an international public offering of such shares
(herein referred to as the "Offerings");
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the parties hereto hereby agree as
follows:
SECTION 1. Definitions. As used herein, the following terms
shall have the meanings as set forth below:
"Affiliate" shall mean, with respect to any Person, a Person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person (it being understood
that, for purposes of this Agreement, members of the ▇▇▇▇▇▇▇ Group, on the one
hand, and members of the GCC Group, on the other hand, shall not be deemed to be
Affiliates of each other).
"Closing Date" shall mean the date of the consummation of the
Offerings.
"Confidentiality Agreements" shall mean those agreements
listed on Annex A hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"GCC Group" shall mean the Company and all Subsidiaries of the
Company (including, from and after the consummation of the transactions
contemplated by the Stock Purchase Agreement, ▇▇▇▇▇ Cable Europe Ltd. and ▇▇▇▇▇
Cable Ltd.).
"Information" shall mean any books, records, contracts,
instruments, data, facts and other information in the possession or under the
control of the members of the ▇▇▇▇▇▇▇ Group or the members of the GCC Group, as
the case may be, necessary or desirable for use in legal, administrative, or
other proceedings or for auditing, accounting or tax purposes.
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or other entity.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Stock Incentive Plan" shall mean the Company's 1997 Stock
Incentive Plan.
"Stock Purchase Agreement" shall mean that certain Stock
Purchase Agreement entered into by and among ▇▇▇▇▇▇▇, General Cable Industries,
Inc. ("GCI") and the Company providing for, among other things, the purchase by
GCI from ▇▇▇▇▇▇▇, and the sale by ▇▇▇▇▇▇▇ to GCI, of all of the outstanding
shares of capital stock of ▇▇▇▇▇ Cable Europe Ltd. and ▇▇▇▇▇ Cable Ltd.
"Subsidiary" shall mean, with respect to any Person, any other
Person of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions (or, if there are no such voting interests, more than 50% of
the equity interests of which) are owned, directly or indirectly, by such
Person; it being understood that, for purposes of this Agreement, neither the
Company nor any Subsidiary of the Company shall be deemed to be a Subsidiary of
▇▇▇▇▇▇▇.
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"▇▇▇▇▇▇▇ Group" shall mean ▇▇▇▇▇▇▇ and all Subsidiaries of
▇▇▇▇▇▇▇, it being understood that in no event shall the Company or any other
member of the GCC Group be deemed to be a member of the ▇▇▇▇▇▇▇ Group for
purposes of this Agreement.
"▇▇▇▇▇▇▇ Letters of Credit" shall mean all letters of credit
issued under any credit facility of ▇▇▇▇▇▇▇ on behalf of any member of the GCC
Group.
SECTION 2. Director Approval and Designation Rights.
SECTION 2.1 Approval of Initial Board. The Company hereby
agrees that all directors to be appointed to the Company's Board of Directors
prior to the first annual meeting of the Company's stockholders following
consummation of the Offerings shall be subject to the prior written approval of
Cable, and further agrees to take all action necessary to cause its Board of
Directors to comply with the provisions of this Section 2.1.
SECTION 2.2 Designation of Directors.
(a) For so long as Cable and its Affiliates continue
to own in the aggregate Common Stock representing at least 10% of the
Company's issued and outstanding Common Stock, excluding any Common
Stock issued pursuant to the Company's Stock Incentive Plan or pursuant
to any other employee benefit plan or arrangement now existing or
hereinafter adopted (the "Minimum Shares"), the Company will take all
action necessary to, and further agrees to take all action necessary to
cause its Board of Directors to, nominate and support the nomination of
one individual designated by Cable (who shall be a director or senior
executive of ▇▇▇▇▇▇▇ or any subsidiary of ▇▇▇▇▇▇▇) for election as a
director of the Company and to solicit proxies in favor of (and
otherwise recommend to its stockholders) the election of such nominee
as a director. If and for so long as the number of directors
constituting the entire Board of Directors is greater than eight (8),
the number of directors that Cable has the right to designate pursuant
to this Section 2.2(a) shall immediately be increased to two (2) and
the Company will take all action necessary to, and further agrees to
take all action necessary to cause its Board of
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Directors to, appoint and subsequently nominate for election an
additional individual designated by Cable.
(b) If Cable ceases to continue to beneficially own
the Minimum Shares, the Company will have no obligation to nominate or
support the nomination of any individual or individuals designated by
Cable for election as a director of the Company or to solicit proxies
in favor of (or otherwise recommend to its stockholders) the election
of such nominee or nominees as director.
(c) In the event of the death, resignation or removal
of any director designated for nomination by Cable, the Company shall
take all action necessary to cause another person designated by Cable
(who shall be a director or senior executive of ▇▇▇▇▇▇▇ or any
subsidiary of ▇▇▇▇▇▇▇) to be elected as a director to fill the
resulting vacancy on the Board of Directors of the Company (which may
include the election of such replacement director by the remaining
directors then in office).
(d) The Company may change the number of directors;
provided that in no event shall any decrease in the number of directors
by the Company or the Company's Board of Directors shorten the term of
any director of the Company that was designated by Cable for nomination
pursuant to this Section 2.2.
(e) If at any time there is a change in the number of
outstanding shares of Common Stock or the class of Common Stock, by
reason of any reclassification, recapitalization, split-up,
combination, exchange of shares, readjustment, or if a stock dividend
thereon is declared, then the number of shares of Common Stock
comprising the Minimum Shares shall be appropriately and equitably
adjusted.
SECTION 3. Indemnification.
SECTION 3.1 Indemnification by the Company. The Company hereby
agrees to indemnify, defend and hold harmless the members of the ▇▇▇▇▇▇▇ Group
(including, without limitation, Cable) and each Person, if any, who controls any
of the foregoing within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, and the respective directors, officers,
shareholders, partners,
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attorneys, accountants, agents and employees and their heirs, successors and
assigns of each of the foregoing (the "▇▇▇▇▇▇▇ Indemnified Parties") from,
against and in respect of any damages, claims, losses, charges, actions, suits,
judgments, proceedings, deficiencies, taxes (excluding taxes referred to in
Section 3.2(d)), interest, penalties and costs and expenses (including, without
limitation, reasonable attorneys' fees) (collectively, "Losses") imposed on,
sustained, incurred or suffered by or asserted against any ▇▇▇▇▇▇▇ Indemnified
Party, directly or indirectly, relating to or arising out of:
(a) the breach of any representation, warranty or
covenant made by the Company in this Agreement;
(b) the breach of any covenant of the Company set
forth in this Agreement;
(c) (i) claims made by any member of the GCC Group
under any insurance policy maintained by the ▇▇▇▇▇▇▇ Group under which
any member of the GCC Group is an insured party including, without
limitation, all premiums (including (A) pre-paid premiums and (B)
premiums relating to periods prior to the consummation of the Offerings
resulting from any retroactive adjustment of such prior period premiums
under the terms of any such policies), deductibles, retention amounts
and other expenses, and (ii) all expenses attributable to any member of
the GCC Group under the Agreement Letters for Paid Loss Program between
▇▇▇▇▇▇▇ USA, Inc. and The Travelers Insurance Company, dated November
20, 1996, November 20, 1995 and July 6, 1995, respectively;
(d) the ownership by any member of the ▇▇▇▇▇▇▇ Group
of the Common Stock or the conduct, ownership and/or operation by any
member of the GCC Group or any predecessor thereof of any of its
respective current, former or future businesses or assets, whether, in
each case, prior to, on or after the date hereof;
(e) any ▇▇▇▇▇▇▇ Letter of Credit including, without
limitation, drawings under, and any fees paid or payable in connection
with the issuance of, or with maintaining outstanding, any such ▇▇▇▇▇▇▇
Letter of Credit;
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(f) the offering or sale of securities of the Company
(including, without limitation, liabilities under the federal
securities laws in connection with the Offerings), except insofar as
such Losses are Losses with respect to which any GCC Indemnified Party
is entitled to be indemnified by ▇▇▇▇▇▇▇ pursuant to Section 3.2(c)
hereof;
(g) any Exchange Act report by the Company, except
insofar as such Losses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission made in
conformity with information relating to a ▇▇▇▇▇▇▇ Indemnified Party
furnished in writing to the Company by or on behalf of such ▇▇▇▇▇▇▇
Indemnified Party expressly for use therein; or
(h) any member of the ▇▇▇▇▇▇▇ Group being deemed a
member of a controlled group, or under common control and treated as a
single employer, with the Company under Section 414(b), (c), (m) or (o)
of the Code or Section 4001(b)(1) of the Employee Retirement Income
Security Act of 1974, as amended.
SECTION 3.2 Indemnification by ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ hereby agrees
to indemnify, defend and hold harmless the member of the GCC Group and their
respective directors, officers, shareholders, partners, attorneys, accountants,
agents and employees and their heirs, successors and assigns (the "GCC
Indemnified Parties") from, against and in respect of any Losses imposed on,
sustained, incurred or suffered by or asserted against any GCC Indemnified
Party, directly or indirectly, relating to or arising out of:
(a) the breach of any representation, warranty or
covenant made by ▇▇▇▇▇▇▇ in this Agreement;
(b) (i) claims made by any member of the ▇▇▇▇▇▇▇
Group under any insurance policy maintained by the GCC Group under
which any member of the ▇▇▇▇▇▇▇ Group is an insured party including,
without limitation, all premiums (including (A) pre-paid premiums and
(B) premiums relating to periods prior to the consummation of the
Offerings resulting from any retroactive adjustment of such prior
period premiums under the terms of any such policies), deductibles,
retention amounts and other expenses, and (ii) all
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expenses attributable to any member of the ▇▇▇▇▇▇▇ Group under the
Agreement Letters for Paid Loss Program between ▇▇▇▇▇▇▇ USA, Inc. and
The Travelers Insurance Company, dated November 20, 1996, November 20,
1995 and July 6, 1995, respectively;
(c) the Offerings, insofar (and only insofar) as such
Losses arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the "Selling
Stockholder" section of any preliminary or final prospectus for the
Offerings, or arise out of or are based upon an omission or alleged
omission to state in such section 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;
(d) any United States federal, state or local
withholding tax, penalties or interest (after utilization of all
available reserves in excess of requirements) imposed on the Company
with respect to any dividends declared and paid by the Company to a
member of the ▇▇▇▇▇▇▇ Group on or before the Closing Date; or
(e) any member of the GCC Group being deemed a member
of a controlled group, or under common control and treated as a single
employer, with the ▇▇▇▇▇▇▇ Group under Section 414(b), (c), (m) or (o)
of the Code or Section 4001(b)(1) of the Employee Retirement Income
Security Act of 1974, as amended.
SECTION 3.3 Indemnification Procedures.
(a) If ▇▇▇▇▇▇▇ and the Company shall receive notice pursuant
to Section 10 of either of the Underwriting Agreements that an action or
proceeding has been brought or asserted against any Underwriter indemnified
party (as such term is defined in the Underwriting Agreements) with respect to
which indemnity may be sought against ▇▇▇▇▇▇▇ and the Company pursuant to such
Section 10, ▇▇▇▇▇▇▇ shall have the right to assume the defense thereof in
accordance with Section 10(b) of the applicable Underwriting Agreement (and
shall, if it so elects, be the "Defending Party" for purposes of such Section
10). If ▇▇▇▇▇▇▇ exercises such right, the fees and expenses of its counsel shall
be paid by the Company and ▇▇▇▇▇▇▇ shall have the right to effect
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a settlement of any such action or proceeding in its sole discretion.
(b) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to Section 3.1 or 3.2, such Person (the
"Indemnified Party") shall promptly notify the person against whom such
indemnify may be sought (the "Indemnifying Party") in writing. If the
Indemnified Party, at its option, elects to defend any such proceeding with
counsel retained by it, the Indemnifying Party shall pay the fees and
expenses of such counsel related to such proceeding. Upon the request of
the Indemnified Party, the Indemnifying Party shall assume the defense thereof
with counsel reasonably satisfactory to such Indemnified Party and shall pay the
fees and expenses of such counsel related to such proceeding. In any such
proceeding in which the Indemnifying Party so assumes the defense thereof, any
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Indemnified Party
and the Indemnifying Party and representation of both parties by the same
counsel would be inappropriate in the reasonable judgment of the Indemnified
Party due to actual or potential differing interests between them. It is
understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, 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 Indemnified Parties, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Indemnified Parties, such firm shall be
designated in writing by the Indemnified Parties. Except as provided in
Section 3.3(a), the Indemnifying Party shall not be liable for any settlement
of any proceeding effected without its written consent, which shall not be
unreasonably withheld. Any settlement shall include a full release of all
Indemnified Parties.
Section 3.4. Contribution. If the indemnification provided for
in Sections 3.1(f), 3.1(g) or 3.2(c) is unavailable to an Indemnified Party in
respect of any Losses referred to therein, then each such Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall
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contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and the Indemnified Party in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. Relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by a particular party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and ▇▇▇▇▇▇▇ agree that it would not be just and equitable
if contribution pursuant to this Section 3.4 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 3.4, no Indemnified Party shall be required to contribute any amount in
excess of the amount by which the net proceeds of the offering (before deducting
expenses) received by such Indemnified Party exceeds the amount of any damages
which such Indemnified Party has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
Section 3.5. Survival of Indemnification; Prior Knowledge. The
indemnification provisions of this Section 3 shall survive the Offerings and any
investigation made at any time by any of the parties hereto, without limitation
as to time or amount. Actual prior knowledge by any Indemnified Party with
respect to any matter as to which indemnification may be sought shall not
constitute a defense to any Indemnified Party's rights to indemnification
pursuant to the provisions hereof.
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SECTION 4. Non-Solicitation.
(a) ▇▇▇▇▇▇▇ and the Company each hereby agrees that for a
period of two (2) years following the Closing Date it shall not, and it shall
not permit any member of the ▇▇▇▇▇▇▇ Group or the GCC Group, respectively, to,
without the prior written consent of the other party hereto, directly or
indirectly, solicit any employee of the ▇▇▇▇▇▇▇ Group or the GCC Group, as the
case may be, for employment by such party; provided, however, that nothing
herein shall preclude any member of the ▇▇▇▇▇▇▇ Group or the GCC Group from
soliciting for employment any employee of the ▇▇▇▇▇▇▇ Group or the GCC Group,
respectively, whose employment with such party has been involuntarily terminated
(other than termination for cause); and provided, further, that nothing herein
shall preclude the ▇▇▇▇▇▇▇ Group or the GCC Group from engaging in ordinary
course general solicitations of employees, or the use of any independent
employment agency or search firm, not specifically directed at employees of the
▇▇▇▇▇▇▇ Group or the GCC Group, as the case may be.
(b) ▇▇▇▇▇▇▇ and the Company each acknowledges and agrees that
a remedy at law for any breach, or threatened breach, of any of the provisions
of this Section 3 will be inadequate and, accordingly, each covenants and agrees
that the other shall, in addition to any other rights and remedies which the
other may have, be entitled to equitable relief, including injunctive relief,
and to the remedy of specific performance with respect to any breach or
threatened breach of such covenant, as may be available from any court of
competent jurisdiction. Such right to obtain equitable relief may be exercised,
at the option of such other party, concurrently with, prior to, after, or in
lieu of, the exercise of any other rights or remedies which such party may have
as a result of any such breach or threatened breach. ▇▇▇▇▇▇▇ and the Company
each hereby waive any requirement of the posting of a surety bond in connection
with the granting of any equitable relief or specific performance.
SECTION 5. Accounting Matters. The Company covenants and
agrees that for so long as ▇▇▇▇▇▇▇ continues to account for its stock interest
in the Company on an equity basis:
(a) the Company will not change its fiscal year end without
the prior written consent of ▇▇▇▇▇▇▇;
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(b) the Company shall provide to ▇▇▇▇▇▇▇ the following:
(i) monthly consolidated management accounts for the
GCC Group, in the form given to executive management of the Company
within 7 days of receipt thereof by executive management (which, with
respect to the monthly consolidated management accounts for the month
of May 1997, notwithstanding the foregoing, shall be delivered to
▇▇▇▇▇▇▇ no later than June 6, 1997 and shall be prepared in a format
consistent with the format used for the April 1997 management
accounts);
(ii) each annual budget of the GCC Group within one month
following the end of each fiscal year of the Company;
(iii) promptly following preparation or delivery thereof,
any written forecasts prepared by or delivered to executive management
of the Company relating to the Company on a consolidated basis;
(iv) promptly following availability thereof, the results of
each audit committee meeting (including, without limitation, minutes
of, and any letters written by or to, the Company's auditors); and
(v) any other information reasonably requested by ▇▇▇▇▇▇▇ and
necessary to assist ▇▇▇▇▇▇▇ with its equity accounting with respect to
its stock interest in the Company and its public reporting obligations
and practices in the U.K.
(c) the Company shall give ▇▇▇▇▇▇▇ at least seven (7) days
prior notice of any public announcement by the Company or any member of the GCC
Group; provided, however, that if, in the reasonable judgment of the Company,
the requirements of applicable law or any stock exchange rule or requirement
would not permit the Company to give ▇▇▇▇▇▇▇ seven days prior notice of any
announcement, the Company may, to the extent required by such law or rules, make
such public announcement without complying with such seven-day notice
requirement, but in such event the Company shall provide ▇▇▇▇▇▇▇ with as much
prior notice of such announcement as is reasonably practicable.
(d) the Company will publicly report its annual and second
quarter earnings, and will file each Annual
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Report on Form 10-K and each Quarterly Report on Form 10-Q for the Company's
second fiscal quarter, at least three business days prior to the respective
dates of Wassall's public announcement of its annual and semi-annual earnings
(the "▇▇▇▇▇▇▇ Announcement Dates").
▇▇▇▇▇▇▇ shall provide the Company with adequate (and, in any event, not less
than ten days or such greater time as reasonably practicable) prior notice of
each ▇▇▇▇▇▇▇ Announcement Date, and the Company and ▇▇▇▇▇▇▇ agree to cooperate
and coordinate with each other with respect to the matters described in clause
(d) above.
SECTION 6. Information.
(a) ▇▇▇▇▇▇▇ shall, and shall cause the other members of the
▇▇▇▇▇▇▇ Group to, provide to any member of the GCC Group and Company shall, and
shall cause the other members of the GCC Group to, provide to any member of the
▇▇▇▇▇▇▇ Group, upon the other's written request and (except as hereinafter
provided) at the cost and expense of the requesting party, at reasonable times,
full and complete access to, and duplication rights with respect to, any and all
such Information as the other may reasonably request in connection with any
legal, administrative or other proceedings or for auditing, accounting and tax
purposes, and ▇▇▇▇▇▇▇ shall use its best efforts to make available to the
Company, and the Company shall use its best efforts to make available to
▇▇▇▇▇▇▇, upon the other's written request, the officers, directors, employees
and agents of the members of the ▇▇▇▇▇▇▇ Group and of the GCC Group,
respectively, as witnesses to the extent that such persons may reasonably be
required in connection with any legal, administrative or other proceedings in
which members of the GCC Group or members of the ▇▇▇▇▇▇▇ Group, as the case may
be, may from time to time be a party. Without limiting the generality of the
foregoing, the GCC Group shall make available to the ▇▇▇▇▇▇▇ Group and its
auditors from time to time such information (including work papers) as may be
necessary or useful in connection with the ▇▇▇▇▇▇▇ earnings releases
contemplated by Section 5(b) hereof including, without limitation, (i) such
information as may be necessary or useful to ▇▇▇▇▇▇▇ to reconcile financial
information of the Company prepared in accordance with U.S. generally accepted
accounting principles ("GAAP") to U.K. GAAP, (ii) documentation showing, in
reasonable detail, the Company's calculations with respect to (A) copper
inventories and (B)
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any tax provisions, and (iii) information, in reasonable detail, regarding any
contingent liabilities of the Company; provided, however, that (x) the Company
shall not be required to perform such reconciliation or to maintain separate
financial books or accounting for U.K. GAAP purposes, and (y) in no event will
▇▇▇▇▇▇▇ report earnings or financial results of the GCC Group in advance of such
disclosure by the GCC Group unless the Company shall have failed to comply with
the requirements of Section 5(d) hereof in a timely manner.
(b) Notwithstanding the provisions of Section 6(a), neither
▇▇▇▇▇▇▇ nor the Company need provide any Information or make available witnesses
to the other (i) to the extent that doing so would (A) result in a waiver of any
attorney-client or work product privilege of such party or its legal counsel,
(B) require either ▇▇▇▇▇▇▇ or the Company to provide any Information which
relates to the subject matter of any legal, administrative or other proceeding
in which any member of the ▇▇▇▇▇▇▇ Group and any member of the GCC Group are
adverse parties, (C) result in any breach of any agreement with a third party,
or (D) result in a violation of any law, regulation or rule to which either
▇▇▇▇▇▇▇ or the Company is subject; and (ii) with respect to any legal,
administrative or other proceeding which has been finally determined by any
court or other body having jurisdiction and which shall not be subject to
judicial review (by appeal or otherwise). Each party shall use reasonable
efforts, if requested by the other, to obtain waivers of any provision of any
agreement which restricts the provision of any Information.
(c) The Company shall provide Information and make available
witnesses pursuant to Section 6(a) at its own cost and expense (except that
▇▇▇▇▇▇▇ shall reimburse the Company for the reasonable expenses incurred by the
Company of making witnesses available outside of the United States) in
connection with (i) any legal, administrative or other proceeding in respect of,
or any audit or investigation by any applicable taxing authority of, the federal
and state tax returns of ▇▇▇▇▇▇▇ which shall include within its scope any audit
or investigation with respect to any member of the GCC Group; and (ii) any
legal, administrative or other proceeding relating to or arising out of
Information provided by any member of the GCC Group to ▇▇▇▇▇▇▇ and included in
or relied on in preparing Wassall's consolidated financial statements, whether
before, at or after the date hereof (audited or unaudited).
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SECTION 7. Additional Covenants.
(a) The Company hereby covenants and agrees that (i) all
federal, state, local and foreign tax returns ("Tax Returns") of the Company
and, if applicable, other members of the GCC Group, shall be filed in a manner
consistent with past practice and past tax reporting since June 9, 1994, (ii)
the Company shall not amend any Tax Returns for periods prior to or including
the Closing Date without the consent of ▇▇▇▇▇▇▇, and (iii) the Company shall not
withdraw any filing with a tax authority which affects a Tax Return made prior
to the date hereof.
(b) The Company hereby covenants and agrees that it shall, and
shall cause the other members of the GCC Group to, comply with the terms and
conditions of the Confidentiality Agreements applicable to and binding upon
▇▇▇▇▇▇▇ and/or the other members of the ▇▇▇▇▇▇▇ Group as if such terms and
conditions were directly binding upon the Company and the other members of the
GCC Group.
(c) The Company hereby covenants and agrees that, promptly
following the consummation of the Offerings, it shall use its best efforts to
obtain letters of credit to replace all outstanding ▇▇▇▇▇▇▇ Letters of Credit.
(d) The Company hereby covenants and agrees that from and
after the consummation of the Offerings, it shall not, and shall cause the other
members of the GCC Group not to, submit any claim based upon or arising out of
events occurring or circumstances existing after the consummation of the
Offerings under any insurance policy under which any member of the ▇▇▇▇▇▇▇ Group
is jointly and severally liable, and further acknowledges and agrees that from
and after the consummation of the Offerings, the ▇▇▇▇▇▇▇ Group shall have no
obligation to maintain or provide any insurance coverage for any Loss that may
be incurred by any member of the GCC Group that is based upon or arises out of
events occurring or circumstances existing after the consummation of the
Offerings. The Company hereby further covenants and agrees that, with respect to
any claims by any member of the GCC Group based upon or arising out of events
occurring or circumstances existing prior to the consummation of the Offerings,
the aggregate amount of all such claims with respect to which the GCC Group
shall be entitled to coverage under any class of insurance policy (e.g., primary
liability and related excess liability, primary property and related excess
property) maintained by the ▇▇▇▇▇▇▇ Group shall not exceed an amount equal to
that percentage of the aggregate limit under such policy class equal to the
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percentage of premiums paid by the GCC Group under such policy class (as a
percentage of the total premiums paid with respect to such policy class by all
covered Persons).
(e) ▇▇▇▇▇▇▇ hereby covenants and agrees that it shall pay to
the Company its allocable portion (based upon the amount of premiums pre-paid by
all covered parties) of any pre-paid premiums with respect to any period after
the consummation of the Offerings actually refunded to ▇▇▇▇▇▇▇, if any, under
any insurance policy maintained by ▇▇▇▇▇▇▇.
(f) ▇▇▇▇▇▇▇ and the Company hereby acknowledge and agree that
upon consummation of the Offerings the Management Agreement between ▇▇▇▇▇▇▇ USA,
Inc. and GCC Corporation shall automatically and without further action
terminate; provided, however, that such termination shall not eliminate or
affect any obligation of GCC Corporation to pay any accrued and unpaid amounts
owed to ▇▇▇▇▇▇▇ USA, Inc. thereunder.
(g) The Company hereby covenants and agrees that it shall use
the proceeds of its initial borrowing under the New Credit Facility (as such
term is defined in the definitive prospectus for the Offerings (the
"Prospectus") as described under the caption "Prospectus Summary - The
Refinancing" in the Prospectus.
SECTION 8. Representations and Warranties. As an inducement to
enter into this Agreement, each of ▇▇▇▇▇▇▇ and Cable represents and warrants to
the Company, and the Company hereby represents and warrants to each of ▇▇▇▇▇▇▇
and Cable, that:
(a) it is a corporation duly organized and validly existing
under the laws of its jurisdiction of incorporation;
(b) it has duly and validly taken all corporate action
necessary to authorize the execution, delivery and performance of this Agreement
and the consummation of the transaction contemplated hereby;
(c) this Agreement has been duly executed and delivered by it
and constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to
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general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity); and
(d) none of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or the compliance with any
of the provisions of this Agreement will (i) conflict with or result in a breach
of any provision of its corporate charter or bylaws or other similar
organizational documents or instruments, (ii) breach, violate or result in a
default under any of the terms of any agreement or other instrument or
obligation to which it is a party or by which it or any of its properties or
assets may be bound, or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to it or affecting any of its properties
or assets, other than, in each case, any conflict, breach, violation or default
that would not be reasonable likely to materially impair the ability of such
party to perform its obligations under this Agreement.
SECTION 9. Confidentiality. Except as otherwise required by
applicable law or stock exchange rule or requirement and subject to the right of
each party to enforce its rights hereunder in any legal action, each party shall
keep strictly confidential and shall cause its employees and agents to keep
strictly confidential, any Information which it or any of its agents or
employees may acquire pursuant to any provision of this Agreement; provided,
however, that such obligation to maintain confidentiality shall not apply to
Information which (a) at the time of disclosure was in the public domain other
than as a result a disclosure by the receiving party or its employees, agents or
Affiliates, or (b) is or becomes available to the receiving party on a
non-confidential basis and without restriction on use or disclosure from a
source which, to the best of the receiving party's knowledge, is not prohibited
from using or disclosing such Information by a legal, contractual or fiduciary
obligation.
SECTION 10. Effective Date of Agreement. Following execution
of this Agreement by the parties hereto, this Agreement shall become effective
on (and shall not be effective until) the Closing Date.
SECTION 11. Benefits of this Agreement; Assignment. Nothing in
this Agreement shall be construed to
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give to any person or entity, other than the parties hereto and (to the extent
provided herein) their respective Affiliates, any legal or equitable right,
remedy or claim under this Agreement. This Agreement is for the sole and
exclusive benefit of, and shall be binding upon, the parties hereto and (to the
extent provided herein) their respective Affiliates and their respective heirs,
personal representatives, successors and permitted assigns. No assignment of any
obligations hereunder may be made by any party to this Agreement (by operation
of law or otherwise) without the prior written consent of the other parties
hereto, and any attempted assignment without such consent shall be void.
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF DELAWARE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
SECTION 13. Severability. If any provision of this Agreement
is held to be invalid or unenforceable, such provision shall be automatically
severed from this Agreement and there shall be added to this Agreement a
provision as similar as possible to such severed provision as may be valid and
enforceable, and the validity and enforceability of the other provisions of this
Agreement shall not be affected thereby.
SECTION 14. Entire Agreement; Amendments. This Agreement
(including the annex hereto) and the Stock Purchase Agreement represent the
entire understanding and agreement between the parties hereto with respect to
the subject matter hereof and supersede all prior and contemporaneous
agreements, understandings and arrangements, whether oral or written, of the
parties with respect thereto. Except as otherwise provided herein, this
Agreement may be amended, supplemented or changed, and any provision hereof may
be waived, only by written instrument making specific reference to this
Agreement signed by the party against whom enforcement of any such amendment,
supplement, modification or waiver is sought.
SECTION 15. Notices. All notices and other communications
under this Agreement shall be in writing and shall be deemed given when
delivered personally, on the fifth business day after mailed by certified mail,
return receipt requested, the next business day after delivery to a recognized
overnight courier or when sent by facsimile to
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the parties (and shall also be transmitted by facsimile to the Persons receiving
copies thereof) at the following addresses (or to such other address as a party
may have specified by notice given to the other party pursuant to this
provision):
If to the Company:
General Cable Corporation
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇ or Cable:
▇▇▇▇▇▇▇ PLC
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ OEE
Attention: Group Solicitor
Facsimile: 171-333-0304
with a copy to:
▇▇▇▇▇▇▇ USA, Inc.
The Moorings
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SECTION 16. Headings. The section headings used in this
Agreement are for convenience only and do not in any way limit or modify the
terms and provisions hereof.
SECTION 17. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
▇▇▇▇▇▇▇ PLC
By:
-------------------------------
Name:
Title:
▇▇▇▇▇▇▇ NETHERLANDS CABLE BV
By:
-------------------------------
Name:
Title:
GENERAL CABLE CORPORATION
By:
-------------------------------
Name:
Title:
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