GENERAL CABLE CORPORATION
16,900,000 Shares
COMMON STOCK
($.01 Par Value)
U.S. UNDERWRITING AGREEMENT
, 1997
U.S. UNDERWRITING AGREEMENT
, 1997
▇▇▇▇▇▇, READ & CO. INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
as Managing Underwriters
c/▇ ▇▇▇▇▇▇, READ & CO. INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ Netherlands Cable B.V., a Netherlands corporation (the
"Selling Stockholder"), proposes to sell to the U.S. Underwriters named in
Schedule A annexed hereto (the "Underwriters"), for whom ▇▇▇▇▇▇, Read & Co. Inc.
and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated are acting as Managing
Underwriters (collectively, the "Managing Underwriters"), an aggregate of
13,520,000 shares (the "U.S. Firm Shares") of Common Stock, par value $.01 per
share (the "Common Stock"), of General Cable Corporation, a Delaware corporation
(the "Company").
It is understood and agreed to by all parties that the Company
and the Selling Stockholder are concurrently entering into an agreement (the
"International Underwriting Agreement", and together with this Agreement, the
"Underwriting Agreements") providing for the sale by the Selling Stockholder of
an aggregate of 3,380,000 shares of Common Stock (the "International Firm
Shares"), through arrangements with certain underwriters outside the United
States (the "International Underwriters") for whom ▇▇▇▇▇▇, Read & Co. Inc.,
▇▇▇▇▇▇▇ ▇▇▇▇▇ International and Swiss Bank Corporation (through its division
SBC Warburg) are acting as International Managing Underwriters (collectively,
the "International Managing Underwriters"). Anything herein or therein to the
contrary notwithstanding, the respective closings under this Agreement and the
International Underwriting Agreement are hereby expressly made conditional on
one another. The Underwriters and the International Underwriters are
simultaneously entering into an Agreement Between the U.S. Underwriters and
the International Underwriters (the "Agreement Between Underwriters") which
provides, among other things, for the transfer of shares of Common Stock
between the two syndicates and for consultation by the International Managing
Underwriters with the Managing Underwriters. Two forms of prospectus are to be
used in connection with the offering and sale of shares of Common Stock
contemplated by the foregoing, one relating to the U.S. Shares (as defined
below) and the other relating to the International Shares (as defined below).
The latter form of prospectus will be identical to the former except for certain
alternate pages as included in the registration statement and amendments
thereto as mentioned below.
In addition, solely for purposes of covering over-allotments, the
Selling Stockholder proposes to grant to the Underwriters an option to purchase
from the Selling Stockholder up to an ag-
gregate of 2,535,000 additional shares of Common Stock (the "Additional
Shares"). The U.S. Firm Shares and the International Shares are hereinafter
sometimes collectively referred to as the "Firm Shares"; the U.S. Firm Shares
and the Additional Shares are hereinafter sometimes collectively referred to as
the "U.S. Shares"; and the U.S. Shares and the International Shares are
hereinafter sometimes collectively referred to as the "Shares." References
herein to any prospectus, whether in preliminary or final form, and whether
amended or supplemented, shall include both the international and U.S. versions
thereof.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (Registration No. 333-22961),
including a prospectus, relating to the Shares. The Company has furnished to the
Managing Underwriters, for use by the Underwriters and by dealers, copies of one
or more preliminary prospectuses (each thereof being herein called a
"Preliminary Prospectus") relating to the Shares. Except as specified, the
registration statement as in effect at the time of execution of this Agreement
or, if the registration statement is not yet effective, as amended when it
becomes effective, including all financial schedules and exhibits thereto filed
as a part thereof, together with any registration statement filed pursuant to
Rule 462(b) under the Act, and including any information contained in a
prospectus subsequently filed with the Commission pursuant to Rule 424(b) under
the Act and deemed to be part of such registration statements at the time of
effectiveness pursuant to Rule 430A under the Act, is herein called the
"Registration Statement," and the prospectus, in the form filed by the Company
with the Commission pursuant to Rule 424(b) under the Act (or, if no such filing
is required, the form of final prospectus included in the Registration Statement
at the time it became effective), is herein called the "Prospectus."
The Company, the Selling Stockholder and the Underwriters agree
as follows:
1. Sale and Purchase. The Selling Stockholder agrees to sell to
the several Underwriters and, upon the basis of the representations and
warranties and the other terms and conditions herein set forth, each of the
Underwriters, severally and not jointly, agrees to purchase from the Selling
Stockholder the respective number of U.S. Firm Shares set forth opposite the
name of such Underwriter in Schedule A hereto, at a purchase price of $[ ] per
Share. The Managing Underwriters may release the U.S. Firm Shares for public
sale promptly after this Agreement becomes effective. The Managing Underwriters
may from time to time increase or decrease the public offering price after the
initial public offering to such extent as the Managing Underwriters may
determine.
In addition, the Selling Stockholder hereby grants to the several
Underwriters the option to purchase, and upon the basis of the representations
and warranties and the other terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Selling Stockholder all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
U.S. Firm Shares, at the same purchase price per share to be paid by the several
Underwriters and the International Underwriters to the Selling Stockholder for
the Firm Shares. This option may be exercised in whole or in part (but not more
than once) on or before the thirtieth day following the date hereof, by written
notice to the Selling Stockholder, with a copy to the Company. Any such notice
shall set forth the aggregate number of
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Additional Shares as to which the option is being exercised, and the date and
time when the Additional Shares are to be delivered (any such date and time
being herein referred to as the "additional time of purchase"); provided,
however, that the additional time of purchase shall not occur earlier than the
time of purchase (as defined below) nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
eighth business day after the date on which the option shall have been
exercised. The number of Additional Shares to be sold to each Underwriter at the
additional time of purchase shall be the number which bears the same proportion
to the aggregate number of Additional Shares being purchased at the additional
time of purchase as the respective number of U.S. Firm Shares set forth opposite
the name of such Underwriter on Schedule A hereto bears to the total number of
U.S. Firm Shares (subject, in each case, to such adjustment as the Managing
Underwriters may determine to eliminate fractional shares). As used herein,
"business day" shall mean a day on which the New York Stock Exchange is open for
trading.
2. Payment and Delivery. Payment of the purchase price for the
U.S. Firm Shares shall be made to the Selling Stockholder by wire transfer of
immediately available funds, at the office of ▇▇▇▇▇▇, Read & Co. Inc. in New
York City, or at such other place as may be agreed to by the Managing
Underwriters, the Company and the Selling Stockholder, against delivery of the
certificates for the U.S. Firm Shares to the Managing Underwriters for the
respective accounts of the Underwriters. Such payment and delivery shall be made
at 9:30 A.M., New York City time, on May , 1997 (unless another time shall be
agreed to by the Managing Underwriters, the Company and the Selling Stockholder
or unless postponed in accordance with the provisions of Section 9(e)). The time
at which such payment and delivery are actually made is hereinafter sometimes
called the "time of purchase." Certificates for the U.S. Firm Shares shall be
delivered to the Managing Underwriters in definitive form in such names and in
such denominations as the Managing Underwriters shall specify on the second
business day preceding the time of purchase. For the purpose of expediting the
checking of the certificates for the U.S. Firm Shares by the Managing
Underwriters, the Selling Stockholder and the Company agree to make such
certificates available to the Managing Underwriters for such purpose at least
one full business day preceding the time of purchase.
Payment of the purchase price for the Additional Shares to be
purchased by the Underwriters shall be made at the additional time of purchase
in the same manner and at the same office as the payment for the U.S. Firm
Shares unless otherwise agreed to by the Managing Underwriters and the Company.
Certificates for the Additional Shares shall be delivered to the Managing
Underwriters in definitive form in such names and in such denominations as the
Managing Underwriters shall specify on the second business day preceding the
additional time of purchase. For the purpose of expediting the checking of the
certificates for such Additional Shares by the Managing Underwriters, the
Selling Stockholder and the Company agree to make such certificates available to
the Managing Underwriters for such purpose at least one full business day
preceding the additional time of purchase.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) Each Preliminary Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the
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Act, complied as to form when so filed in all material respects with the
Act; when the Registration Statement or any amendment or supplement
thereto was or is declared effective by the Commission (the "Effective
Time"), at the time of purchase and at the additional time of purchase,
the Registration Statement and the Prospectus, and any supplements or
amendments thereto, complied and will comply as to form in all material
respects with the provisions of the Act; and neither the Registration
Statement nor any supplement or amendment thereto, at any such time,
contained or will contain an untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
neither the Prospectus nor any supplement or amendment thereto, at any
such time, contained or will contain an untrue statement of a material
fact or omitted or will omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty
with respect to any statement contained in the Registration Statement or
the Prospectus in reliance upon and in conformity with information
concerning the Underwriters furnished in writing by or on behalf of any
Underwriter through the Managing Underwriters to the Company expressly
for use in the Registration Statement or the Prospectus and set forth in
the seventh and twentieth paragraphs of the section of the Registration
Statement and the Prospectus entitled "Underwriting."
(b) As of the date of this Agreement, the Company has an
authorized capitalization as set forth under the column entitled "March
31, 1997 Actual" in the section of the Registration Statement and the
Prospectus entitled "Capitalization" and, as of the time of purchase,
the capitalization of the Company will be as set forth under the column
entitled "March 31, 1997 As Adjusted" in the section of the Registration
Statement and the Prospectus entitled "Capitalization." All of the
issued and outstanding shares of capital stock of the Company (including
the Shares) have been duly authorized and validly issued, are fully paid
and nonassessable and are free of statutory and contractual preemptive
rights and are free and clear of any pledge, lien, encumbrance, security
interest or other claim. As of the date of this Agreement, there are
24,250,000 shares of Common Stock outstanding, all of which are owned by
the Selling Stockholder. The capital stock of the Company, including the
Shares, conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus under the
caption "Description of Capital Stock"; and the certificates for the
Shares are in due and proper form and the holders of the Shares after
making payment therefor will not be subject to personal liability by
reason of being such holders.
(c) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware with all requisite power and authority to (i) own its
properties and conduct its business as described in the Registration
Statement and the Prospectus and (ii) execute and deliver this
Agreement.
(d) All of the issued and outstanding shares of capital stock of
each of the subsidiaries of the Company (the "Subsidiaries") other than
General Photonics LLC are owned directly by the Company or another
subsidiary of the Company; all of such shares have been
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duly authorized and validly issued and are fully paid and nonassessable
and, except as described in the Prospectus, are owned free and clear of
any pledge, lien, encumbrance, security interest or other claim; there
are no outstanding rights, subscriptions, warrants, calls, preemptive
rights, options or other agreements of any kind with respect to the
capital stock of any of the Subsidiaries.
(e) Each of the Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation, with all requisite power and
authority to own its respective properties and to conduct its respective
businesses.
(f) Each of the Company and each of the Subsidiaries is duly
qualified or licensed by, and is in good standing in, each jurisdiction
in which it owns or leases property or conducts its business and in each
other jurisdiction in which the failure, individually or in the
aggregate, to be so qualified or licensed could, singly or in the
aggregate, reasonably be expected to have a material adverse effect on
the properties, assets, operations, business, business prospects or
condition (financial or other) of the Company and the Subsidiaries taken
as a whole (a "Material Adverse Effect"). Each of the Company and each
of the Subsidiaries is in compliance with the laws, orders, rules,
regulations and directives of any federal, state, local or foreign
government or regulatory authority, agency or commission, including
courts of competent jurisdiction (collectively, "Governmental
Authority"), applicable to the Company, except for such failure to be in
compliance as could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(g) Neither the Company nor any of the Subsidiaries is in breach
of, or in default under (nor has any event occurred which with notice,
lapse of time or both would constitute a breach of, or default under),
(x) its charter or bylaws, or (y) in the performance or observance of
any obligation, agreement, covenant or condition contained in any
license, indenture, lease, mortgage, deed of trust, bank loan or credit
agreement, material supply or distribution agreement or other agreement
or instrument to which the Company or any of the Subsidiaries is a party
or by which any of them may be bound or affected, which, in the case of
clause (y), breach or default could, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect. None of the
execution, delivery and performance of this Agreement or the
International Agreement or the consummation of the transactions
contemplated hereby or thereby will conflict with, or result in any
breach of or constitute a default under (nor constitute any event which
with notice, lapse of time or both would constitute a breach of, or
default under), (i) the charter or bylaws of the Company or any of the
Subsidiaries, (ii) any provision of any license, indenture, lease,
mortgage, deed of trust, bank loan or credit agreement, material supply
or distribution agreement or any other agreement or instrument to which
the Company or any of the Subsidiaries is a party or by which any of
them or their properties may be bound or affected, (iii) any federal,
state, local or foreign law, regulation or rule or (iv) any decree,
judgment or order applicable to the Company or any of the Subsidiaries
except, with respect to clauses (ii), (iii) and (iv), for such
conflicts, breaches or defaults
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that could not, singly or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(h) Each of this Agreement and the International Underwriting
Agreement has been duly authorized, executed and delivered by the
Company.
(i) No approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the sale of the Shares as contemplated hereby, other than
registration of the Shares under the Act and the registration of the
Common Stock under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), clearance of the offering of the Shares with the
National Association of Securities Dealers, Inc. (the "NASD") and any
necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters or by the International Underwriters.
(j) No person has the right, contractual or otherwise, to cause
the Company to issue to it, or register pursuant to the Act, any
securities of the Company by reason of the sale of the Shares to the
Underwriters hereunder or to the International Underwriters under the
International Underwriting Agreement.
(k) Deloitte & Touche LLP, whose reports on the combined and
consolidated financial statements of the Company and the Subsidiaries
are included in the Registration Statement and the Prospectus, are
independent public accountants with respect to the Company as required
by the Act and the applicable published rules and regulations
thereunder.
(l) All legal or governmental proceedings, contracts or documents
of a character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration
Statement have been so described or filed as required.
(m) There is no action, suit or proceeding (collectively, the
"Legal Proceedings") pending or, to the Company's knowledge, threatened
against the Company or any of the Subsidiaries or any of their
properties, at law or in equity, or before or by any Governmental
Authority, other than Legal Proceedings disclosed in the Prospectus and
Legal Proceeding that could not, singly or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(n) The audited and unaudited financial statements (including the
notes thereto) included in the Registration Statement and the Prospectus
present fairly the combined or consolidated financial position of the
Company and the Related Companies (as defined therein) as of the dates
indicated and the combined or consolidated results of operations and
cash flows of the Company and the Related Companies or the Company's
predecessor and subsidiaries, as the case may be, and the consolidated
stockholders' equity of the Company's predecessor and subsidiaries, in
each case for the periods specified; such financial statements have
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been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved,
except as disclosed therein.
(o) The pro forma financial statements and other pro forma
financial information (including the notes thereto) included in the
Registration Statement and the Prospectus have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly computed on the
bases described therein. The assumptions used in the preparation of the
pro forma financial statements and other pro forma information in the
Registration Statement and the Prospectus are set forth therein and are
reasonable, and the adjustments used therein are appropriate to give pro
forma effect to the transactions or circumstances referred to therein.
The other financial and statistical information and data relating to the
Company set forth in the Registration Statement and the Prospectus have
been prepared on a basis consistent with the financial statements and
books and records of the Company. The other statistical and
market-related data set forth in the Registration Statement and the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate.
(p) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as
may be otherwise stated in the Registration Statement and the
Prospectus, there has not been: (A) any material adverse change in the
properties, assets, operations, business, business prospects or
condition (financial or other) of the Company and the Subsidiaries taken
as a whole; (B) any transaction that is material to the Company and the
Subsidiaries taken as a whole, entered into by the Company or any of the
Subsidiaries; or (C) any obligation, contingent or otherwise, directly
or indirectly incurred by the Company or any of the Subsidiaries that is
material to the Company and the Subsidiaries taken as a whole.
(q) Neither the Company nor any of the Subsidiaries has violated
any foreign, federal, state or local law, regulation, decree, order,
directive, requirement or judgment applicable to the Company or any of
the Subsidiaries relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), nor any federal or state law
relating to discrimination in the hiring, promotion or pay of employees
nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules
and regulations promulgated thereunder, and neither the Company nor any
of the Subsidiaries has received any notice which is pending alleging
any violation thereof or liability thereunder, which in any case could,
singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(r) The Company and each of the Subsidiaries has such permits,
licenses, consents, approvals, franchises and authorizations required by
governmental or regulatory authorities ("Permits"), and has made all
filings required, including without limitation under any applicable
Environmental Laws, as are necessary to own, lease and operate its
respective properties and to conduct its business, except for such
Permits the failure to so hold could not,
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singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect ("Material Permits"). The Company and each of the
Subsidiaries is not in material violation of, and has fulfilled and
performed all of its material obligations with respect to, its Material
Permits and the Company has not received notice from any Governmental
Authority of the revocation or termination, or threatened revocation or
termination, of any Material Permits or any other material impairment of
the rights of the holder of any Material Permit; and, except as
described in the Prospectus, the Material Permits contain no
restrictions that are materially burdensome to the Company or any of the
Subsidiaries.
(s) Compliance by the Company and the Subsidiaries with
Environmental Laws (as currently in effect), including any capital or
operating expenditure required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities, singly or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(t) Neither the Company nor any of the Subsidiaries, nor, to the
Company's knowledge, any employee of the Company or any of the
Subsidiaries, has made any payment of funds of the Company or any of the
Subsidiaries prohibited by applicable law, and no funds of the Company
or any of the Subsidiaries have been set aside to be used for any
payment prohibited by applicable law.
(u) The Company and the Subsidiaries have filed all federal or
state income or franchise tax returns required to be filed and have paid
all taxes shown thereon as due and required to have been paid except for
tax assessments, if any, as to which adequate reserves have been
provided in accordance with generally accepted accounting principles.
There is no material tax deficiency which has been asserted against the
Company or any of the Subsidiaries. All material tax liabilities are
adequately provided for on the books of the Company and the
Subsidiaries.
(v) Each of the Company and the Subsidiaries owns or possesses
sufficient licenses or other rights to use all patents, patent
applications, trademarks, trademark applications, service marks, service
▇▇▇▇ applications, trade names, copyrights, inventions, trade secrets,
technology and know-how (collectively, "Intellectual Property Rights")
required in the conduct of its business as described in the Prospectus.
To the Company's knowledge, there are no rights of third parties to, or
any infringement by others of, any such Intellectual Property Rights,
and there is not pending or, to the Company's knowledge, threatened any
action, suit, proceeding or claim by others that the Company or any
Subsidiary is infringing or otherwise violating Intellectual Property
Rights of others or challenging the validity or scope of the rights of
the Company or any Subsidiary in or to any such Intellectual Property
Rights other than infringements or claims that could not, singly or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(w) The Company has not incurred, and will not incur, any
liability for any finder's fees or similar payments in connection with
the transactions herein contemplated.
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(x) The Company and the Subsidiaries have good title to all
properties and assets owned or leased by them, in each case free and
clear of all liens, security interests, pledges, charges, encumbrances,
mortgages and defects, except such as are described or referred to in
the Registration Statement and the Prospectus or such as could not,
singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(y) Neither the Company nor any of the Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, or is subject to regulation under such act.
(z) Neither the Company nor any of its officers, directors or
affiliates (within the meaning of the Act) has taken, directly or
indirectly, any action designed to stabilize or manipulate the price of
the Common Stock, or which has constituted or which might in the future
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock, to facilitate the sale or
resale of the Shares or otherwise.
(aa) The Company and each of the Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as the
Company reasonably believes is adequate for the conduct of their
respective businesses and the value of their respective properties.
(bb) No labor disturbance by the employees of the Company or any
of the Subsidiaries exists or, to the Company's knowledge, is threatened
which could, singly or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
4. Representations and Warranties of the Selling Stockholder. The
Selling Stockholder represents and warrants to each Underwriter that:
(a) The Selling Stockholder is and at the time of delivery of the
Shares as contemplated by the Underwriting Agreements will be the lawful
owner of the Shares and, at the time of delivery thereof, will have good
and marketable title to the Shares, and upon delivery of and payment for
the Shares in accordance with the Underwriting Agreements, the
Underwriters will acquire good and marketable title to the Shares, free
and clear of any claim, lien, encumbrance, security interest,
restriction on transfer or other defect in title.
(b) The Selling Stockholder has and at the time of delivery of
the Shares will have all requisite power and authority to sell, assign,
transfer and deliver the Shares in the manner provided in the
Underwriting Agreements.
(c) Each of the Underwriting Agreements has been duly authorized,
executed and delivered by the Selling Stockholder and ▇▇▇▇▇▇▇ PLC
("▇▇▇▇▇▇▇").
(d) The sale of the Shares by the Selling Stockholder pursuant
hereto is not prompted by any material and adverse information
concerning the Company that is not described in the Prospectus; to the
Selling Stockholder's knowledge, neither the Registration Statement nor
any supplement or amendment thereto, at
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the Effective Time, at the time of purchase or at the additional time of
purchase, contained or will contain any untrue statement of material
fact or omitted or will omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and neither the Prospectus nor any supplement or amendment
thereto, at the Effective Time, at the time of purchase or at the
additional time of purchase, contained or will contain any untrue
statement of material fact or omitted or will omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Selling Stockholder makes no
representation or warranty with respect to any statement contained in
the Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriters furnished in
writing by or on behalf of any Underwriter through the Managing
Underwriters to the Company expressly for use in the Registration
Statement or the Prospectus and set forth in the seventh and twentieth
paragraphs of the section of the Registration Statement and the
Prospectus entitled "Underwriting."
(e) The consummation of the transactions contemplated hereby and
by the International Underwriting Agreement and the fulfillment of the
terms hereof and thereof will not conflict with, or result in any breach
of or constitute a default under (nor constitute any event which with
notice, lapse of time or both would constitute a breach of or default
under), (i) the Articles of the Selling Stockholder, (ii) any provision
of any license, indenture, lease, mortgage, deed of trust, bank loan or
credit agreement or any other material agreement or instrument to which
the Selling Stockholder is a party or by which the Selling Stockholder
or any of its properties may be bound or affected, (iii) any federal,
state, local or foreign law or regulation or (iv) any decree, judgment
or order binding on the Selling Stockholder except, with respect to
clauses (ii), (iii) and (iv), for such conflicts, breaches or defaults
that would not materially impair or delay the ability of the Selling
Stockholder to consummate the transactions contemplated by the
Underwriting Agreements.
(f) Neither the Selling Stockholder nor any of its officers,
directors or affiliates (within the meaning of the Act) has taken,
directly or indirectly, any action designed to stabilize or manipulate
the price of the Common Stock, or which has constituted or which might
in the future reasonably be expected to cause or result in stabilization
or manipulation of the price of the Common Stock, to facilitate the sale
or resale of the Shares or otherwise.
(g) The Shares do not constitute a "United States real property
interest" as defined in U.S. Internal Revenue Code section 897(c)(1).
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise
to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as the Managing Underwriters
may designate and to maintain such qualifications in effect as long as
required for the distribution of the Shares; provided, however, that the
Company shall not be required to qualify as a foreign corporation or to
consent to the service of process un-
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der the laws of any such state (except service of process with respect
to the offering and sale of the Shares); promptly to advise the Managing
Underwriters of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to obtain the withdrawal of
any order of suspension at the earliest practicable time;
(b) to make available to the Managing Underwriters in New York
City, as soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendment or
supplement thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes contemplated
by the Act;
(c) to advise the Managing Underwriters promptly and if requested
by the Managing Underwriters to confirm such advice in writing, (i) when
the Registration Statement has become effective and when any
post-effective amendment thereto becomes effective and (ii) when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act, if required under the Act (which the Company agrees to file in
a timely manner under such Rule);
(d) to advise the Managing Underwriters promptly, confirming such
advice in writing, of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information with respect thereto, or of notice of institution
of proceedings for or the entry of a stop order suspending the
effectiveness of the Registration Statement and, if the Commission
should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting or
removal of such order as soon as possible; to advise the Managing
Underwriters promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and to file no such amendment
or supplement to which the Managing Underwriters shall reasonably object
in writing;
(e) to furnish to the Managing Underwriters and, upon request to
each of the other Underwriters, for a period of five years from the date
of this Agreement (i) copies of all reports or other communications that
the Company shall send to its stockholders and (ii) copies of all
annual, quarterly and current reports filed with the Commission on Forms
10-K, 10-Q and 8-K, or such other similar form as may be designated by
the Commission, and any other document filed by the Company pursuant to
Section 12, 13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(f) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a prospectus
relating to the Shares is required to be delivered under the Act that,
in the reasonable judgment of the Company, would require the making of
any change in the Prospectus then being used, so that the Prospectus, as
then
-11-
supplemented, would not include an untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they are made,
not misleading and, during such time, promptly to prepare and furnish,
at the Company's expense, to the Underwriters such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change, in such quantities as requested by the Underwriters, and to
furnish to the Managing Underwriters a copy of such proposed amendment
or supplement before filing any such amendment or supplement with the
Commission;
(g) to make generally available to its security holders, and to
deliver to the Managing Underwriters, an earnings statement of the
Company (which need not be audited and which will satisfy the provisions
of Section 11(a) of the Act including, at the option of the Company,
Rule 158) covering a period of 12 months beginning after the effective
date of the Registration Statement but ending not later than 15 months
after the date of the Registration Statement, as soon as is reasonably
practicable after the termination of such 12-month period;
(h) to furnish to each of the Managing Underwriters and their
counsel copies of the Registration Statement, as initially filed with
the Commission, and of all amendments thereto (including all exhibits
thereto) and sufficient copies of the foregoing (other than exhibits)
for distribution of a copy to each of the other Underwriters;
(i) to furnish to the Managing Underwriters as early as
practicable prior to the time of purchase and the additional time of
purchase, as the case may be, but not later than two business days prior
thereto, a copy of the latest available unaudited interim consolidated
financial statements, if any, of the Company and the Subsidiaries that
have been read by the Company's independent certified public accountants
as stated in their letter to be furnished pursuant to Section 8(b);
(j) to use its best efforts to cause the Shares to be listed on
the New York Stock Exchange;
(k) not to offer, sell, contract to sell, pledge, grant any
option to purchase, transfer or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock or warrants or other rights
to purchase or acquire Common Stock or permit the registration under the
Act of any shares of Common Stock, except for the registration of the
Shares, for a period commencing on the date hereof and continuing for
180 days after the date of the Prospectus, without the prior written
consent of ▇▇▇▇▇▇, Read & Co. Inc.; provided, however, that the
foregoing shall not prohibit the grant or issuances of options and
restricted shares (and shares in the care of directors) of Common Stock,
in each case, to officers, directors and employees of the Company
pursuant to director and employee stock plans described in the
Prospectus.
-12-
6. Certain Covenants of the Selling Stockholder. The Selling
Stockholder agrees:
(a) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement otherwise becomes effective
or is terminated, to pay all expenses, fees and taxes (other than (x)
any transfer taxes and (y) fees and disbursements of counsel for the
Underwriters except as set forth under Section 7 and clauses (ii) and
(iii) below) in connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus, the Prospectus and
any amendment or supplement thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the word processing or printing of
this Agreement, the Agreement Between Underwriters, any dealer
agreements, and the reproduction or printing and furnishing of copies of
each thereof to the Managing Underwriters and to dealers (including
costs of mailing and shipment), (iii) the qualification of the Shares
for offering and sale under state laws as aforesaid (including
reasonable legal fees and filing fees and other disbursements of counsel
for the Underwriters) and the printing and furnishing of copies of any
blue sky surveys to the Managing Underwriters and to dealers, (iv) any
listing of the Shares on any securities exchange or qualification of the
Shares for inclusion in the Nasdaq National Market and any registration
thereof under the Exchange Act, (v) any filing for review of the public
offering of the Shares by the NASD and (vi) the performance of the
Company's and the Selling Stockholder's other obligations hereunder; and
(b) the Selling Stockholder will not offer, sell, contract to
sell, pledge, grant any option to purchase, transfer or otherwise
dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock or warrants or other rights to purchase or acquire Common Stock,
except for the sale of the Shares pursuant to this Agreement and the
International Underwriting Agreement, for a period commencing on the
date hereof and continuing for 180 days after the date of the
Prospectus, without the prior written consent of ▇▇▇▇▇▇, Read & Co. Inc.
7. Reimbursement of Underwriters' Expenses. If the Firm Shares or
the Additional Shares are not delivered for any reason, other than the failure
of the Underwriters to purchase the Firm Shares or the Additional Shares (unless
such failure is permitted under the provisions of Section 9(b) of this
Agreement), the Selling Stockholder will reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
their counsel.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholder on the date hereof and at the time of purchase or the additional
time of purchase, as the case may be, the performance in all material respects
by each of the Company and the Selling Stockholder of its obligations hereunder
to be performed at or prior to the time of purchase or the additional time of
purchase, as the case may be, and to the following additional conditions:
-13-
(a) The Company shall furnish to the Managing Underwriters at the
time of purchase and at the additional time of purchase, as the case may
be, an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for the
Company and the Selling Stockholder, addressed to the Underwriters and
dated the time of purchase or the additional time of purchase, as the
case may be, with reproduced copies for each of the other Underwriters
and in form reasonably satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel
for the Underwriters, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with all requisite corporate power and
authority (A) to own its properties and conduct its business as
described in the Registration Statement and the Prospectus and
(B) to execute and deliver this Agreement and the International
Underwriting Agreement;
(ii) each of the Underwriting Agreements has been duly
authorized, executed and delivered by the Company and ▇▇▇▇▇▇▇;
(iii) the certificates for the Shares are in due and proper
form and the holders of the Shares will not be subject to
personal liability by reason of being such holders;
(iv) (a) the Company has an authorized capitalization as
set forth under the heading "Capitalization" in the Registration
Statement and the Prospectus, and (b) the outstanding shares of
capital stock of the Company (including the Shares) have been
duly authorized and validly issued and are fully paid and
nonassessable and have not been issued in violation of any
preemptive rights under the Company's certificate of
incorporation or under the Delaware General Corporation Law;
(v) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus under
the caption "Description of Capital Stock";
(vi) the Registration Statement and the Prospectus (except
as to the financial statements and schedules and other financial,
statistical and accounting data contained therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act;
(vii) the Registration Statement has become effective under
the Act and no stop order proceedings with respect thereto are
pending or, to the best of such counsel's knowledge, threatened
under the Act;
(viii) no approval, authorization, consent or order of or
filing with any New York, Delaware corporate or federal
Governmental Authority is required in connection with the sale of
the Shares as contemplated hereby or by the International
Underwriting Agreement other than filings and other actions
required pursuant to federal
-14-
and state securities and blue sky laws, as to which we express no
opinion, and the Act or the Exchange Act and the rules and
regulations promulgated thereunder;
(ix) the execution, delivery and performance of the
Underwriting Agreements by the Company and the consummation by
the Company of the transactions contemplated hereby do not and
will not conflict with, or result in any breach of, or constitute
a default under (nor constitute any event which with notice,
lapse of time or both would constitute a breach of or default
under), (i) the charter or bylaws of the Company, (ii) any
provision of any agreement or instrument evidencing or governing
indebtedness for borrowed money or any other material agreement
or instrument known to such counsel to which the Company is a
party or by which the Company or any of its properties is bound,
or (iii) any New York, Delaware corporate or federal law or
regulation or (iv) any decree, judgment or order applicable to
the Company of which such counsel is aware;
(x) the statements in the Registration Statement and the
Prospectus under the captions "Description of Capital Stock,"
"Shares Eligible For Future Sale" and "Certain U.S. Federal Tax
Consequences to Non-U.S. Holders of Common Stock," insofar as
they are descriptions of laws, regulations and rules, or of
contracts, agreements and other legal documents, or refer to
statements of law or legal conclusions, have been reviewed by
such counsel and are accurate in all material respects;
(xi) neither the Company nor any of the Subsidiaries is an
"investment company" within the meaning of Investment Company Act
of 1940, as amended;
(xii) upon transfer and delivery of the Shares and payment
therefor in accordance with the Underwriting Agreements, the
Underwriters will acquire good and marketable title to the
Shares, free and clear of any claim, lien, encumbrance, security
interest, community property right, restriction on transfer or
other defect in title, assuming that the several Underwriters and
the several International Underwriters are good faith purchasers
and do not have notice of any adverse claim;
(xiii) no approval, authorization, consent or order of or
filing with any Governmental Authority of the United Kingdom and
no corporate action of ▇▇▇▇▇▇▇ is required, in each case, in
connection with the sale of the Shares by the Selling Stockholder
to the Underwriters as contemplated hereby or by the
International Underwriting Agreement, except such as have been
obtained and are in full force and effect and filings and other
actions that may be required pursuant to the securities laws of
the United Kingdom, as to which we express no opinion; and
(xiv) the execution, delivery and performance of the
Underwriting Agreements and the consummation of the transactions
contemplated hereby do not and will not conflict with, or result
in any breach of, or constitute a default under, (x) the
memorandum or articles of association of ▇▇▇▇▇▇▇, (y) any decree,
judgment or order applicable to ▇▇▇▇▇▇▇ of which such counsel is
aware or (z) any United Kingdom law or regulation.
-15-
In addition, such counsel shall state that although they have not
independently verified and are not passing upon the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus (except to the extent specified in paragraphs
(v) and (x)), no facts have come to the attention of such counsel that
cause them to believe that the Registration Statement or any amendment
thereto at the time such Registration Statement or amendment became
effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus or any
supplement thereto, on the date thereof or on the date of such opinion,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express
no opinion with respect to the financial statements and related notes,
the financial statement schedules and the other financial, statistical
and accounting data included in the Registration Statement or
Prospectus).
(b) The Company shall furnish to the Managing Underwriters at the
time of purchase and at the additional time of purchase, as the case may
be, an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel of the
Company, addressed to the Underwriters and dated the time of purchase or
the additional time of purchase, as the case may be, with reproduced
copies for each of the other Underwriters and in form reasonably
satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters,
to the effect that:
(i) each of the Company and each of the Subsidiaries is
duly qualified or licensed to do business and is in good standing
as a foreign corporation in each jurisdiction in which it
conducts business or owns property and in which the failure,
singly or in the aggregate, to be so licensed or qualified could
reasonably be expected to have a Material Adverse Effect;
(ii) each of the Subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under
the laws of the state in which such Subsidiary is incorporated,
with all requisite corporate power and authority to own its
properties and to conduct its business as described in the
Registration Statement and the Prospectus;
(iii) the outstanding shares of capital stock of the
Company (including the Shares) have not been issued in violation
of any preemptive rights under any agreement or arrangement known
to such counsel; all of the issued and outstanding shares of
capital stock of each Subsidiary have been duly authorized and
validly issued and are fully paid and nonassessable and, except
as described in the Prospectus, are owned, directly or
indirectly, by the Company free and clear of any pledge, lien,
encumbrance, security interest, preemptive right or other claim,
and there are no rights, warrants, options or other agreements to
acquire or instruments convertible into or exchangeable for any
shares of capital stock or other equity interest of any
Subsidiary;
-16-
(iv) the execution, delivery and performance of the
Underwriting Agreements by the Company and the consummation by
the Company of the transactions contemplated hereby do not and
will not conflict with, or result in any breach of, or constitute
a default under (nor constitute any event which with notice,
lapse of time or both would constitute a breach of or default
under), the charter or bylaws of the Company or any of the
Subsidiaries, or any provision of any material license or any
indenture, lease, mortgage, deed of trust, bank loan or credit
agreement or any other material agreement or instrument known to
such counsel to which the Company or any of the Subsidiaries is a
party or by which the Company or any of the Subsidiaries or any
of their properties is bound, or under any Kentucky, Delaware
corporate or federal law, regulation or rule or any decree,
judgment or order applicable to the Company or any of the
Subsidiaries;
(v) the Company and each of the Subsidiaries has all
Material Permits, including without limitation under any
applicable Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its business in
the manner described in the Prospectus;
(vi) all contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement have been
so described or filed;
(vii) to such counsel's knowledge, no person has the right,
contractual or otherwise, to cause the Company to issue to it, or
register pursuant to the Act, any securities of the Company in
consequence of the sale of the U.S. Shares to the Underwriters
hereunder or to the International Underwriters under the
International Underwriting Agreement;
(viii) except as described in the Registration Statement
and the Prospectus, there are no actions, suits or proceedings of
which such counsel has knowledge pending or threatened against
the Company or any of the Subsidiaries, or any of their
respective properties, at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency that individually or
in the aggregate could reasonably be expected to result in a
judgment, decree or order having a Material Adverse Effect; and
(ix) the statements in the Registration Statement and the
Prospectus under the captions "Business -- Environmental Matters"
and "Business -- Legal Proceedings," insofar as they are
descriptions of laws, regulations and rules, of legal or
governmental proceedings or of contracts, agreements and other
legal documents, or refer to statements of law or legal
conclusions, have been reviewed by such counsel and are accurate
in all material respects.
In addition, such counsel shall state that, although he has not
independently verified and is not passing upon the accuracy,
completeness or fairness of the statements contained in
-17-
the Registration Statement or Prospectus (except to the extent specified
in paragraph (ix)), no facts have come to the attention of such counsel
that cause him to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment
became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus or any supplement thereto, on the date thereof or on the date
of such opinion, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood that
such counsel need express no opinion with respect to the financial
statements and related notes, the financial statement schedules and the
other financial, statistical and accounting data included in the
Registration Statement or Prospectus).
(c) The Company shall furnish to the Managing Underwriters at the
time of purchase and at the additional time of purchase, as the case may
be, an opinion of Loeff ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, special Netherlands counsel for
the Selling Stockholder, addressed to the Underwriters and dated the
time of purchase or the additional time of purchase, as the case may be,
with reproduced copies for each of the other Underwriters and in form
reasonably satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Underwriters, to the effect that:
(i) each of the Underwriting Agreements has been duly
authorized by all requisite corporate action on the part of, and
has been duly executed and delivered by, the Selling Stockholder;
(ii) the Selling Stockholder has the corporate power to
sell, assign, transfer and deliver the Shares to be sold by the
Selling Stockholder in the manner provided in this Agreement and
the International Underwriting Agreement and to perform its
obligations thereunder;
(iii) the consummation of the transactions contemplated
hereby and by the International Underwriting Agreement and the
fulfillment of the terms hereof and of the International
Underwriting Agreement will not conflict with, or result in any
breach of, or constitute a default under (nor constitute any
event which with notice, lapse of time or both would constitute a
breach of or default under), (a) the Articles of the Selling
Stockholder, or (b) any law or regulation of The Netherlands; and
(iv) no approval, authorization, consent or order of or
filing with any governmental authority of The Netherlands, other
than pursuant to any securities law applicable in The Netherlands
and the notice requirements to the Netherlands Central Bank
pursuant to the Act on Foreign Financial Relations (Wet
Financiele Betrekkingen Buitenland) and regulations promulgated
thereunder, is required in connection with the offering and sale
of the Shares by the Selling Stockholder as contemplated by the
Underwriting Agreements.
-18-
(d) The Company shall furnish to the Managing Underwriters at the
date of this Agreement, at the time of purchase and at the additional
time of purchase, letters from Deloitte & Touche LLP dated,
respectively, the date of this Agreement and the time of purchase and
the additional time of purchase, as the case may be, and addressed to
the Underwriters (with reproduced copies for each of the Underwriters)
in form and substance satisfactory to the Managing Underwriters.
(e) The Managing Underwriters shall have received at the time of
purchase and at the additional time of purchase, as the case may be, an
opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in form and substance satisfactory
to the Managing Underwriters.
(f) No amendment or supplement to the Registration Statement or
the Prospectus shall be filed prior to the time the Registration
Statement becomes effective to which the Managing Underwriters shall
have objected in writing.
(g) The Registration Statement shall become effective at or
before 5:00 P.M., New York City time, on the date of this Agreement and,
if Rule 430A under the Act is used, the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Act at or before
5:00 P.M., New York City time, on the second full business day after the
date of this Agreement; provided, however, that the Company, the Selling
Stockholder and the Managing Underwriters and any group of Underwriters,
including the Managing Underwriters, who have agreed hereunder to
purchase in the aggregate at least 50% of the Firm Shares from time to
time may agree in writing or by telephone, confirmed in writing, on a
later date.
(h) Prior to the time of purchase or the additional time of
purchase, as the case may be: (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated for such purpose under Section 8(d) or
8(e) of the Act; (ii) the Registration Statement and all amendments
thereto, if any, shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and (iii) the
Prospectus and all amendments or supplements thereto, if any, shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(i) Between the time of execution of this Agreement and the time
of purchase or the additional time of purchase, as the case may be,
there has not been: (i) any material and adverse change in the
properties, assets, operations, business, business prospects or
condition (financial or other) of the Company and the Subsidiaries taken
as a whole, other than as described in the Registration Statement and
the Prospectus; or (ii) any transaction that is material to the Company
and the Subsidiaries taken as a whole entered into by the Company or any
of the Subsidiaries, other than as described in the Registration
Statement and the Prospectus; or (iii) any obligation, contingent or
otherwise, directly or indirectly, incurred by the
-19-
Company or any of the Subsidiaries that is material to the Company and
the Subsidiaries taken as a whole, other than as described in the
Registration Statement and the Prospectus.
(j) The Company, at the time of purchase or additional time of
purchase, as the case may be, shall have delivered to the Managing
Underwriters a certificate of two of its executive officers to the
effect that the representations and warranties of the Company as set
forth in this Agreement are true and correct as of each such date and
the conditions set forth in Section 8(h) and Section 8(i) have been met.
(k) The Selling Stockholder, at the time of purchase or
additional time of purchase, as the case may be, shall have delivered to
the Managing Underwriters a certificate to the effect that the
representations and warranties of the Selling Stockholder as set forth
in this Agreement are true and correct as of each such date.
(l) The Shares shall have been approved for listing on the New
York Stock Exchange.
(m) The closing of the purchase and sale of the Shares pursuant
to the International Underwriting Agreement shall occur concurrently
with the purchase and sale of the Shares hereunder.
(n) The Company shall have furnished to the Selling Stockholder
and the Managing Underwriters a certificate dated the time of purchase
(x) pursuant to U.S. Treasury Regulation section 1.897-2(g) stating that
the Shares do not constitute a United States real property interest and
(y) stating that the Company has complied with the requirements of U.S.
Treasury Regulation section 1.897-2(h)(2) or 1.897-2(h)(4) in relation
to the statement referred to in clause (x) of this paragraph.
(o) The Company and the Selling Stockholder shall have furnished
to the Managing Underwriters such other documents and certificates as
the Managing Underwriters reasonably may request.
(p) The Company and the Selling Stockholder shall have performed
such of their respective obligations under this Agreement and under the
International Underwriting Agreement as are to be performed by the terms
hereof at or before the time of purchase and at or before the additional
time of purchase, as the case may be.
9. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective (i) if Rule 430A under
the Act is not used, when the Managing Underwriters shall have received
notification of the effectiveness of the Registration Statement, or (ii)
if Rule 430A under the Act is used, when the parties hereto have
executed and delivered this Agreement.
-20-
(b) The obligations of the several Underwriters hereunder shall
be subject to termination in the absolute discretion of the Managing
Underwriters or any group of Underwriters (which may include the
Managing Underwriters) which has agreed to purchase in the aggregate at
least 50% of the U.S. Firm Shares if, at any time prior to the time of
purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase of such Additional Shares, as the case may
be, trading in securities on the New York Stock Exchange shall have been
suspended or minimum prices shall have been established on the New York
Stock Exchange or if a banking moratorium shall have been declared
either by the United States or New York State authorities, or if the
United States shall have declared war in accordance with its
constitutional processes or there shall have occurred any material
outbreak or escalation of hostilities or other national or international
calamity or crisis of such magnitude in its effect on, or any material
adverse change in, any financial market which, in each case, in the
judgment of the Managing Underwriters or in the judgment of such group
of Underwriters, makes it impracticable to proceed with the offering of
the Shares as contemplated hereby. If the Managing Underwriters or any
group of Underwriters elect to terminate this Agreement as provided in
this Section 9(b), the Company and each other Underwriter shall be
notified promptly by letter or telegram.
(c) If any Underwriter shall default in its obligation to take up
and pay for the U.S. Firm Shares to be purchased by it hereunder and if
the number of U.S. Firm Shares which all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed 10%
of the total number of U.S. Firm Shares, the non-defaulting Underwriters
shall take up and pay for (in addition to the aggregate principal amount
of U.S. Firm Shares they are obligated to purchase pursuant to Section
1) the number of U.S. Firm Shares agreed to be purchased by all such
defaulting Underwriters as hereinafter provided. Such Shares shall be
taken up and paid for by such non-defaulting Underwriter or Underwriters
in such amount or amounts as the Managing Underwriters may designate
with the consent of each Underwriter so designated or, in the event no
such designation is made, such Shares shall be taken up and paid for by
all non-defaulting Underwriters pro rata in proportion to the aggregate
number of U.S. Firm Shares set opposite the names of such non-defaulting
Underwriters in Schedule A.
(d) If any Underwriter shall default in its obligation to take up
and pay for the U.S. Firm Shares to be purchased by it hereunder and if
the number of U.S. Firm Shares which all Underwriters so defaulting
shall have agreed but failed to take up and pay for exceeds 10% of the
total number of U.S. Firm Shares, and arrangements satisfactory to the
Managing Underwriters, the Company and the Selling Stockholder are not
made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter.
(e) Without relieving any defaulting Underwriter from its
obligations hereunder, the Selling Stockholder agrees with the
non-defaulting Underwriters that it will not sell any U.S. Firm Shares
hereunder unless all of the Firm Shares are purchased by the
Underwriters and the International Underwriters (or by substituted
underwriters selected by the Managing
-21-
Underwriters with the approval of the Selling Stockholder or selected by
the Selling Stockholder with the approval of the Managing Underwriters
pursuant to Section 9(d)). If a new Underwriter or Underwriters are
substituted for a defaulting Underwriter or Underwriters in accordance
with Section 9(d) hereof or Section 7(d) of the International
Underwriting Agreement, the Selling Stockholder or the Managing
Underwriters shall have the right to postpone the time of purchase for a
period not exceeding five business days in order that any necessary
change in the Registration Statement and the Prospectus and other
documents may be effected. The term Underwriter as used in this
Agreement shall refer to and include any Underwriter substituted under
this Section 9 with like effect as if such substituted Underwriter had
originally been named in Schedule A.
(f) If the purchase of the Shares by the Underwriters, as
contemplated by this Agreement or the International Underwriting
Agreement, is not consummated for any reason permitted under this
Agreement or if such purchase is not consummated because the Company or
the Selling Stockholder shall be unable to comply with any of the terms
of this Agreement or the International Underwriting Agreement, the
Company and the Selling Stockholder shall not be under any obligation or
liability under this Agreement (except to the extent provided in
Sections 6(a), 7 and 10), and the Underwriters shall be under no
obligation or liability to the Company or the Selling Stockholder under
this Agreement (except to the extent provided in Section 10).
10. Indemnity by the Company, the Selling Stockholder and the
Underwriters.
(a) The Company and the Selling Stockholder, jointly and
severally, agree to indemnify, defend and hold harmless each
Underwriter, each person that controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
each Underwriter's agents, employees, officers and directors and the
agents, employees, officers and directors of any such controlling person
(collectively, the "Underwriter indemnified parties") from and against
any and all losses, claims, damages, judgments, liabilities and expenses
(including the reasonable cost of investigation) which, jointly or
severally, any Underwriter indemnified party may incur as they are
incurred (and regardless of whether such Underwriter indemnified party
is a party to the litigation, if any) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in the registration statement relating to the Shares or the
Prospectus or any Preliminary Prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
judgments, liabilities or expenses arise out of, or are based upon, any
such untrue statement or omission or alleged untrue statement or
omission based upon and in conformity with information with respect to
any Underwriter furnished in writing by any Underwriter through the
Managing Underwriters to the Company expressly for use therein with
reference to such Underwriter; provided, however, that the Selling
Stockholder shall not be liable under this Section 10 in an amount
exceeding the net proceeds to be received by such Selling Stockholder
(before deducting expenses) from the sale of Shares hereunder.
Notwithstanding the foregoing, the indemnification contained in this
paragraph
-22-
with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter indemnified party for any liability arising
from or based upon an untrue statement or omission made in a Preliminary
Prospectus if (i) it is established in the related proceeding that such
Underwriter failed to send or give a copy of the Prospectus (as amended
or supplemented if the Company shall have furnished such amendments or
supplements thereto to such Underwriter reasonably prior to the written
confirmation of such sale) to such person with or prior to the written
confirmation of such sale, if required by applicable law, and (ii) such
untrue statement or omission of a material fact in or from such
Preliminary Prospectus was corrected in the Prospectus (as amended or
supplemented if amended or supplemented as aforesaid). This indemnity
agreement will be in addition to any liability the Company or the
Selling Stockholder otherwise may have.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted
against any Underwriter indemnified party, with respect to which
indemnity may be sought against the Company or the Selling Stockholder
pursuant to this Section 10, such Underwriter indemnified party shall
promptly notify the Company and the Selling Stockholder in writing, and
the Company and/or the Selling Stockholder (as they determine between
themselves in their discretion) shall assume the defense thereof
(individually or collectively, the "Defending Party"), including the
employment of counsel reasonably satisfactory to the Underwriter
indemnified party and payment of all fees and expenses; provided,
however, at the omission so to notify the Company and the Selling
Stockholder shall not relieve them from any liability that they may have
to any Underwriter indemnified party except to the extent that the
indemnifying party is materially prejudiced thereby. An Underwriter
indemnified party shall have the right to employ separate counsel in any
such action or proceeding and to assume the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such
Underwriter indemnified party unless (i) the employment of such counsel
has been authorized in writing by the Defending Party, (ii) the
Defending Party has failed promptly to assume the defense and employ
counsel reasonably satisfactory to the Underwriter indemnified party or
(iii) the named parties to any such action or proceeding (including any
impleaded parties) include both the Underwriter indemnified party and
the Defending Party and such Underwriter indemnified party shall have
reasonably concluded that there may be one or more legal defenses
available to it that are different from or additional to those available
to the Defending Party (in which case the Defending Party shall not have
the right to assume the defense of such action on behalf of such
Underwriter indemnified party), in any of which events such fees and
expenses shall be borne by the Defending Party and reimbursed as they
are incurred. It is understood, however, that the Defending Party shall
not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) at any time for all such Underwriter
indemnified parties, which firm shall be designated in writing by
▇▇▇▇▇▇, Read & Co. Inc., and that all such fees and expenses shall be
reimbursed as they are incurred. The Company and the Selling Stockholder
shall not be liable for any settlement of any such action effected
without the written consent of the Defending Party (which consent shall
not be unreasonably
-23-
withheld or delayed), but if settled with the written consent of the
Defending Party, or if there is a final judgment with respect thereto,
the Company and the Selling Stockholder agree to indemnify and hold
harmless each Underwriter indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(c) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, its officers who sign the
Registration Statement, and any person that controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(collectively, the "Company indemnified parties") and the Selling
Stockholder, its directors and any person that controls the Selling
Stockholder within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (collectively, the "Selling Stockholder indemnified
parties") to the same extent as the foregoing indemnity from the Company
and the Selling Stockholder to the Underwriter indemnified parties, but
only with respect to information concerning such Underwriter furnished
in writing by or on behalf of such Underwriter through the Managing
Underwriters to the Company expressly for use with respect to such
Underwriter in the Registration Statement, any Preliminary Prospectus or
the Prospectus. In case any action shall be brought against any Company
indemnified party or the Selling Stockholder based on the Registration
Statement, any Preliminary Prospectus or the Prospectus and in respect
of which indemnity may be sought against any Underwriter pursuant to
this Section 10(c), such Underwriter shall have the rights and duties
given to the Company and the Selling Stockholder by Section 10(b)
(except that if the Company and/or the Selling Stockholder shall have
assumed the defense thereof such Underwriter shall not be required to do
so, but may employ separate counsel therein and participate in the
defense thereof, provided, however, that the fees and expenses of such
separate counsel shall be at the expense of such Underwriter), and the
Company indemnified parties and the Selling Stockholder indemnified
parties shall have the rights and duties given to the Underwriter
indemnified parties by Section 10(b).
(d) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless any Underwriter
indemnified party or any Company indemnified party or the Selling
Stockholder, then the party required to indemnify such indemnified party
under this Section 10, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, judgments, liabilities and
expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholder on
the one hand and the Underwriters on the other hand from the offering of
the Shares, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Selling Stockholder
on the one hand and the Underwriters on the other hand in connection
with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Selling Stockholder on the one hand and the Underwriters on the
other hand shall be deemed to be in the same proportion as the total
proceeds from the offering (net of underwriting discounts and
commis-
-24-
sions but before deducting expenses) received by the Company and the
Selling Stockholder bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault of the
Company and the Selling Stockholder on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company, by the Selling
Stockholder or by the Underwriters, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, judgments, liabilities and
expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any claim or action.
The Company, the Selling Stockholder and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 10(d) were determined by pro rata allocation or by any other
method of allocation (even if the Underwriters were treated as one
entity for such purpose) that does not take account of the equitable
considerations referred to in this Section 10(d). Notwithstanding the
provisions of this Section 10(d), no Underwriter indemnified party shall
be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by such Underwriter
indemnified party and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter
indemnified party otherwise has been required to pay by reason of such
untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 10
are several in proportion to their respective underwriting commitments
and are not joint.
(e) The statements in the seventh and twentieth paragraphs under
the caption "Underwriting" in the Prospectus (to the extent such
statements relate to an Underwriter) and the last paragraph on the cover
page of the Prospectus constitute the only information furnished to the
Company in writing by such Underwriter expressly for use in the
Registration Statement, any Preliminary Prospectus or the Prospectus.
(f) The indemnity and contribution agreements contained in this
Section 10 and the representations, warranties and covenants of the
Company and the Selling Stockholder contained in this Agreement shall
remain in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter indemnified party or by or on behalf of
any Company indemnified party or any Selling Stockholder indemnified
party, and shall survive any termination of this Agreement or the
delivery of the Shares. Subject to the provisions of Section 10(b) and
Section 10(c), the Company, the Selling Stockholder and each Underwriter
agree promptly to notify the others of the commencement of any
litigation or proceeding
-25-
against it in connection with the sale of the Shares or in connection
with the Registration Statement or the Prospectus.
(g) The Company and the Selling Stockholder may agree, as between
themselves, as to their respective amounts of liability under this
Section 10 for which they each shall be responsible and as to which of
them shall control the defense of any proceeding, but no such agreement
shall limit the rights of the Underwriters or any Underwriter
indemnified party against either the Company or the Selling Stockholder.
11. Guarantee by ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ unconditionally and irrevocably
guarantees to the Underwriters the performance of the Selling Stockholder's
obligations under the Underwriting Agreements.
12. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
▇▇▇▇▇▇, Read & Co. Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Syndicate Department; if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company at
General Cable Corporation, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel; if to the Selling Stockholder, shall be sufficient
in all respects, if delivered or sent to ▇▇▇▇▇▇▇ Netherlands Cable B.V., c/o
Wassall PLC, 39 Victoria Street, London 5W1H OEE, Attention: Company Secretary;
and it to ▇▇▇▇▇▇▇, shall be sufficient in all respects if delivered or sent to
▇▇▇▇▇▇▇ PLC, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Attention: Company Secretary.
13. Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW THEREOF. THE SECTION HEADINGS IN THIS
AGREEMENT HAVE BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT
A PART OF THIS AGREEMENT.
14. Parties at Interest. The Agreement herein set forth has been
and is made solely for the benefit of the Underwriters, the Company, the Selling
Stockholder, the Underwriter indemnified parties, the Company indemnified
parties and the Selling Stockholder indemnified parties, and their respective
successors, assigns, executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from any
of the Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
15. Counterparts. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties.
-26-
If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholder, ▇▇▇▇▇▇▇ and the Underwriters, please so
indicate in the space provided below for such purpose, whereupon this letter and
your acceptance shall constitute a binding agreement among the Company, the
Selling Stockholder, ▇▇▇▇▇▇▇ and the Underwriters, severally.
Very truly yours,
GENERAL CABLE CORPORATION
By:
-----------------------------
Name:
Title:
▇▇▇▇▇▇▇ NETHERLANDS CABLE B.V.
By:
-----------------------------
Name:
Title:
▇▇▇▇▇▇▇ PLC
By:
-----------------------------
Name:
Title:
Accepted and agreed to as of the date first
above written, on behalf of themselves
and the other several Underwriters
named in Schedule A
▇▇▇▇▇▇, READ & CO. INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED.
By: ▇▇▇▇▇▇, READ & CO. INC.
By:
--------------------------------------
Name:
Title:
-27-
SCHEDULE A
----------
Number of U.S.
Underwriter Firm Shares
▇▇▇▇▇▇, Read & Co. Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
