STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT made this 13th day of May, 1997
between Xxxxxxx PLC, a corporation organized under the laws of England
("Xxxxxxx"), General Cable Industries, Inc., a Delaware corporation ("GCI"), and
General Cable Corporation, a Delaware corporation ("GCC").
W I T N E S S E T H:
WHEREAS, Xxxxxxx is the beneficial and record owner of 52,000
ordinary shares (the "Xxxxx Cable Shares") of Xxxxx Cable Ltd., a corporation
organized under the laws of England and Wales ("Xxxxx Cable"), and 775,000
ordinary shares (the "Xxxxx Europe Shares") of Xxxxx Cable Europe Ltd., a
corporation organized under the laws of England and Wales ("Xxxxx Europe" and,
together with Xxxxx Cable, the "Xxxxx Companies"), which represent all of the
issued and outstanding capital stock of the Xxxxx Companies (collectively, the
"Xxxxx Shares"); and
WHEREAS, Xxxxxxx desires to sell to GCI, and GCI desires to
purchase from Xxxxxxx, the Xxxxx Shares upon the terms and subject to the
conditions set forth herein;
NOW THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto agree as follows:
SECTION 1. Purchase and Sale of Xxxxx Cable Shares. Upon the
terms and subject to the conditions contained herein, GCI hereby agrees to
purchase from Xxxxxxx, and Xxxxxxx hereby agrees to sell, assign, transfer,
convey and deliver to GCI, the Xxxxx Shares, for an aggregate purchase price
(the "Purchase Price") of U.S. $2 million (which amount shall be allocated
between the Xxxxx Cable Shares and the Xxxxx Europe Shares as set forth on
Exhibit A hereto).
SECTION 2. Payment of Purchase Price. On the Closing Date (as
hereinafter defined), GCI shall pay the Purchase Price to Xxxxxxx by delivery to
Xxxxxxx of a certified or bank cashier's check in New York Clearing House Funds,
payable to the order of Xxxxxxx, or at Wassall's option, by wire transfer of
immediately available funds into an account designated by Xxxxxxx.
SECTION 3. Closing. The closing of the purchase and sale of
the Xxxxx Cable Shares (the "Closing") will take place at 10:00 a.m. at the
offices of Weil, Gotshal & Xxxxxx
LLP located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (or at such other place as
the parties may mutually agree) on the business day following the satisfaction
of the conditions set forth in Sections 8.1 and 8.2 hereof (or the waiver
thereof by the party entitled to waive that condition), or on such other date as
Xxxxxxx and GCI may mutually agree. The date on which the Closing shall be held
is referred to in this Agreement as the "Closing Date".
SECTION 4. Representations and Warranties of
Xxxxxxx. Xxxxxxx represents and warrants to GCI and GCC as
follows:
(a) Xxxxxxx is a corporation duly organized and
validly existing under the laws of England.
(b) Xxxxxxx has all requisite corporate power and authority to
execute, deliver and perform this Agreement. The execution, delivery and
performance by Xxxxxxx of this Agreement have been duly authorized by all
necessary corporate action on the part of Xxxxxxx.
(c) This Agreement has been duly executed and delivered by
Xxxxxxx. This Agreement constitutes a legal and valid obligation of Xxxxxxx,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to 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).
(d) None of the execution and delivery by Xxxxxxx of this
Agreement, the consummation of the transactions contemplated hereby or thereby,
or compliance by Xxxxxxx with any of the provisions hereof or thereof will (i)
conflict with, or result in the breach of, any provision of the memorandum or
articles of association of Xxxxxxx; or (ii) violate any statute, rule,
regulation or Order (as hereinafter defined) of any governmental body or
authority by which Xxxxxxx is bound; except, in the case of clause (ii), for
such violations, breaches or defaults as would not, individually or in the
aggregate, materially and adversely impair or delay the consummation of the
transactions contemplated by this Agreement.
(e) No consent, waiver, approval, Order, permit or
authorization of, or declaration or filing with, or notification to, any
governmental authority is required
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on the part of Xxxxxxx in connection with the execution and delivery of this
Agreement or the compliance by Xxxxxxx with any of the provisions hereof or
thereof.
(f) The Xxxxx Cable Shares constitute all of the issued and
outstanding shares of capital stock of the Xxxxx Cable Companies. Xxxxxxx is the
beneficial owner of the Xxxxx Cable Shares, free and clear of any liens, claims,
security interests, pledges, restrictions, or other encumbrances whatsoever
(collectively, "Liens").
SECTION 5. Representations and Warranties of GCI and GCC. GCI
and GCC jointly and severally represent and warrant to Xxxxxxx as follows:
(a) Each of GCI and GCC is a corporation duly organized and
validly existing under the laws of State of Delaware.
(b) Each of GCI and GCC has all requisite corporate power and
authority to execute, deliver and perform this Agreement. The execution,
delivery and performance of this Agreement by each of GCI and GCC have been duly
authorized by all necessary corporate action on the part of GCI and GCC,
respectively.
(c) This Agreement has been duly executed and delivered by
each of GCI and GCC. This Agreement constitutes a legal and valid obligation of
each of GCI and GCC, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to 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).
(d) None of the execution and delivery by GCI or GCC of this
Agreement, the consummation of the transactions contemplated hereby or thereby,
or compliance by GCI or GCC with any of the provisions hereof or thereof will
(i) conflict with, or result in the breach of, any provision of the certificate
of incorporation or by-laws of GCI or GCC; or (ii) violate any statute, rule,
regulation or Order of any governmental body or authority by which GCI or GCC is
bound; except, in the case of clause (ii), for such violations, breaches or
defaults as would not, individually or in the aggregate, materially and
adversely impair or delay the consummation of the transactions contemplated by
this Agreement.
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(e) No consent, waiver, approval, Order, permit or
authorization of, or declaration or filing with, or notification to, any
governmental authority is required on the part of GCI or GCC in connection with
the execution and delivery of this Agreement or the compliance by GCI or GCC
with any of the provisions hereof or thereof.
(f) GCI is purchasing the Xxxxx Cable Shares for investment
purposes only and not with a view to the sale or distribution thereof in
violation of the Securities Act of 1933, as amended.
SECTION 6. No Warranty. Except as set forth in Section 4
hereof, Xxxxxxx does not make and expressly, completely and absolutely disclaims
any representations, warranties or agreements of any kind whatsoever with
respect to Xxxxxxx, the Xxxxx Companies or the business and assets of Xxxxxxx or
the Xxxxx Companies. It is therefore expressly understood and agreed that Buyer
accepts the condition of the properties of the Xxxxx Companies "AS IS, WHERE IS"
without any representation, warranty or guarantee, express or implied, as to
merchantability, fitness for a particular purpose or otherwise as to the
condition, size, extent, quantity, type or value of such property.
SECTION 7. Covenants.
SECTION 7.1 Repayment of Debt; Assumption of Obligations.
(a) On the Closing Date, GCI shall provide the Xxxxx Companies
with the funds necessary to, and shall cause the Xxxxx Companies to, (i) repay
in full to Xxxxxxx all outstanding loans and other advances (including any
accrued and unpaid interest through the Closing Date thereon) owed to Xxxxxxx or
any affiliate of Xxxxxxx by either of the Xxxxx Cable Companies (collectively,
"Intercompany Loans"), (ii) discharge Xxxxxxx or any subsidiary of Xxxxxxx from
all liability in respect of any letters of credit outstanding on the Closing
Date on behalf of either of the Xxxxx Cable Companies, and (iii) pay the
principal amount of, and all accrued and unpaid interest through the Closing
Date on, all outstanding borrowings of Xxxxx Cable and Xxxxx Europe under any
credit facility of Xxxxxxx or any subsidiary of Xxxxxxx.
(b) GCI hereby expressly assumes and agrees to punctually pay,
perform, satisfy, become primarily liable for and discharge as and when due all
obligations, claims, liabilities, debts or other expenses of any kind or nature,
whether known or unknown, fixed, contingent, absolute, determined,
undeterminable, liquidated or unliquidated or
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otherwise, of Xxxxxxx (or any affiliate of Xxxxxxx) directly or indirectly
relating to or arising under (i) Wassall's 'L'37,155 floating rate Unsecured
Loan Note 2001, consisting of (A) an Unsecured Loan Note in the amount of
'L'19,655 (Certificate No. 1) held by X X Xxxxxx Esq., (B) an Unsecured Loan
Note in the amount of 'L'13,710 (Certificate No. 2) held by X X Xxxxxx Esq.,
and (C) an Unsecured Loan Note in the amount of 'L'3,790 (Certificate No. 3)
held by X X Xxxxxxx Esq. (collectively, the "Notes") (including, without
limitation, any accrued and unpaid amounts thereunder), (ii) any automobile
leases made in Wassall's name for or on behalf of any employee of either of the
Xxxxx Companies (collectively, the "Leases"), and (iii) any severance agreement
or arrangement entered into by Xxxxxxx or any affiliate of Xxxxxxx and any
employee of the Xxxxx Companies (the "Severence Agreements"). GCI further
undertakes to use its commercially reasonable efforts, promptly following the
Closing Date, to enter into an amendment to each such Note, Lease and Severence
Agreement or to enter into new notes, leases or severence agreements in
substitution for and replacement of the Notes, Leases and Severence Agreements,
in either case providing for the full and unconditional release of Xxxxxxx from
all obligations and liabilities under each of the Notes, the Leases and the
Severence Agreements.
SECTION 7.2 Other Actions. Each of Xxxxxxx GCC and GCI shall
use its reasonable efforts to (i) take (or cause to be taken) all actions
necessary or appropriate to consummate the transactions contemplated by this
Agreement, and (ii) cause the fulfillment at the earliest practicable date of
all of the conditions to their respective obligations to consummate the
transactions contemplated by this Agreement.
SECTION 8. Conditions to Closing.
SECTION 8.1 Conditions to the Obligations of GCI and GCC. The
obligation of each of GCI and GCC to consummate the transactions contemplated by
this Agreement is subject to the fulfillment, on or prior to the Closing Date,
of each of the following conditions (any or all of which may be waived by GCC in
whole or in part to the extent permitted by applicable law):
(a) all representations and warranties of Xxxxxxx contained
herein shall be true and correct in all material respects as of the Closing
Date;
(b) Xxxxxxx shall have performed and complied in all material
respects with all obligations and covenants
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required by this Agreement to be performed or complied withby it on or prior to
the Closing Date;
(c) certificates representing 100% of the Xxxxx Company Shares
(or, in lieu thereof, a certificate attesting to the loss of any such
certificate, in form reasonably satisfactory to GCC (a "Lost Stock
Certificate")) shall have been, or shall at the Closing be, validly delivered
and transferred to GCC, free and clear of any and all Liens; and
(d) there shall not be in effect any order, injunction,
judgment, decree, ruling, writ or assessment (collectively, "Order") by a
governmental authority of competent jurisdiction restraining, enjoining or
otherwise prohibiting the consummation of the transactions contemplated hereby;
and
(e) the initial public offerings of all or a portion of the
shares of common stock of GCC owned by a subsidiary of Xxxxxxx (the "Offerings")
shall have been consummated.
SECTION 8.2 Conditions Precedent to Obligations of the
Xxxxxxx. The obligations of Xxxxxxx to consummate the transactions contemplated
by this Agreement are subject to the fulfillment, prior to or on the Closing
Date, of each of the following conditions (any or all of which may be waived by
Xxxxxxx in whole or in part to the extent permitted by applicable law):
(a) all representations and warranties of GCI and GCC
contained herein shall be true and correct in all material respects as of the
Closing Date;
(b) Each of GCI and GCC shall have performed and complied in
all material respects with all obligations and covenants required by this
Agreement to be performed or complied with by such party on or prior to the
Closing Date;
(c) there shall not be in effect any Order by a governmental
authority of competent jurisdiction restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated hereby; and
(d) the Offerings shall have been consummated.
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SECTION 9. Documents to be Delivered at Closing.
SECTION 9.1 Documents to be Delivered by GCI. At the Closing,
GCI shall deliver to Xxxxxxx the following:
(a) evidence of the wire transfer referred to in Section 2
hereof; and
(b) evidence, in form and substance reasonably satisfactory to
Xxxxxxx, of the repayments and discharges referred to in clauses (ii) and (iii)
of Section 7.1(a).
SECTION 9.2 Documents to be Delivered by Xxxxxxx. At the
Closing, Xxxxxxx shall deliver, or cause to be delivered, to GCI:
(a) the stock certificates representing the Xxxxx Cable
Shares, duly endorsed in blank or accompanied by stock transfer powers and with
all requisite stock transfer tax stamps attached (or, in lieu of any thereof, a
Lost Stock Certificate), in each case accompanied by stock powers or stock
transfer forms duly endorsed in blank or accompanied by duly executed
instruments of transfer; and
(b) resignations of Messrs. Xxxxxx and Xxxxx from the board of
directors of each Xxxxx Company, effective upon the Closing.
SECTION 10. Indemnification.
SECTION 10.1 Indemnification for Breaches of Representations.
Xxxxxxx agrees to indemnify and hold harmless GCI and GCC, and GCI and GCC
jointly and severally agree to indemnify and hold harmless Xxxxxxx, from and
against any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs and expenses (including reasonable attorneys'
fees) (collectively, "Losses") of any kind which may be imposed upon, incurred
by or asserted against such other party arising out of or resulting from the
failure of any representations or warranty made by such party hereunder to be
true and correct.
SECTION 10.2 Additional Indemnification. GCI and GCC further
jointly and severally agree to indemnify and hold harmless Xxxxxxx and its
affiliates against Losses of any kind which may be imposed upon, incurred by or
asserted against Xxxxxxx or any such affiliates arising out of or resulting from
ownership by Xxxxxxx or any such affiliate of the Xxxxx Cable Shares or the
conduct, ownership or operation by the Xxxxx Companies, GCC or any affiliate
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thereof of any of the current, former or future businesses or assets of Xxxxx
Cable or Xxxxx Europe or any predecessor thereof regardless of when such Losses
arose or arise and regardless of by whom or when such Losses are asserted.
SECTION 11. Further Assurances. The parties each agree that
if, at any time after the date hereof, any party shall consider or be advised
that any further assignments, conveyances, certificates, filings, instruments or
documents or any other things are necessary or desirable to vest, perfect or
confirm in GCI title to the Xxxxx Cable Shares, or to consummate any of the
transactions contemplated by this Agreement, the appropriate other party shall,
upon request, promptly execute and deliver all such proper deeds, assignments,
certificates, filings, instruments and documents and do all things reasonably
necessary and proper to vest, perfect or confirm title to the Xxxxx Cable Shares
in GCI, or otherwise to carry out the purposes of this Agreement.
SECTION 12. Benefits of this Agreement; Assignment. Nothing in
this Agreement shall be construed to give to any person or entity, other than
the parties hereto, 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 their respective heirs, personal
representatives, successors and permitted assigns. No assignment of this
Agreement or any rights or 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 13. 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 14. 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 15. Entire Agreement; Amendments. This Agreement
(including the exhibits hereto) and the Intercompany Agreement between Xxxxxxx,
Xxxxxxx Netherlands
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Cable BV and GCC dated as of the date hereof, 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 can be amended, supplemented
or changed, and any provision hereof can 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 16. 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 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 GCI or GCC:
General Cable Corporation
0 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
If to Xxxxxxx:
Xxxxxxx PLC
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X OEE
Attention: Group Solicitor
Facsimile: 171-333-0304
with a copy to:
Xxxxxxx USA, Inc.
The Moorings
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: 000-000-0000
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SECTION 17. 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 18. 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.
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.
XXXXXXX PLC
By:_________________________________
Name:
Title:
GENERAL CABLE INDUSTRIES, INC.
By:_________________________________
Name:
Title:
GENERAL CABLE CORPORATION
By:_________________________________
Name:
Title:
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EXHIBIT A
ALLOCATION OF PURCHASE PRICE
Amount Allocated
-----------------
Xxxxx Cable Shares $1,250,000
Xxxxx Europe Shares $750,000
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