-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, K8nraQtgtVzZMgUHbDzlbKo5bgPkUf2Tns78WiEAS4g1X+bcYMbU+Ic7ccuLi6Ko ZRfVLhtuF56sHF1Gf+cbzg== 0000950130-96-004660.txt : 19961210 0000950130-96-004660.hdr.sgml : 19961210 ACCESSION NUMBER: 0000950130-96-004660 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19961206 EFFECTIVENESS DATE: 19961206 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CABLE DESIGN TECHNOLOGIES CORP CENTRAL INDEX KEY: 0000913142 STANDARD INDUSTRIAL CLASSIFICATION: DRAWING AND INSULATING NONFERROUS WIRE [3357] IRS NUMBER: 363601505 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-17443 FILM NUMBER: 96677268 BUSINESS ADDRESS: STREET 1: 661 ANDERSON DR STREET 2: FOSTER PLZ 7 CITY: PITTSBURGH STATE: PA ZIP: 15220 BUSINESS PHONE: 4129372300 MAIL ADDRESS: STREET 1: FOSTER PLAZA 7 STREET 2: 661 ANDERSEN DRIVE CITY: PITTSBURGH STATE: PA ZIP: 15220 S-8 1 FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 6, 1996 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ----------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------- CABLE DESIGN TECHNOLOGIES CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 36-3601505 (State of or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) FOSTER PLAZA 7 661 ANDERSEN DRIVE PITTSBURGH, PENNSYLVANIA 15220 (Address of Principal Executive Offices) (zip code) ----------------------- CONSULTING AGREEMENT WITH MICHAEL F.O. HARRIS CONSULTING AGREEMENT WITH GLENN KALNASY (Full title of plans) ----------------------- PAUL M. OLSON PRESIDENT AND CHIEF EXECUTIVE OFFICER FOSTER PLAZA 7 661 ANDERSEN DRIVE PITTSBURGH, PENNSYLVANIA 15220 (Name and address of agent for service) (412) 937-2300 (Telephone number, including area code, of agent for service) Copy to: LANCE C. BALK KIRKLAND & ELLIS CITICORP CENTER 153 EAST 53RD STREET NEW YORK, NEW YORK 10022-4675 Calculation of Registration Fee
====================================================================================================== Title of securities to Amount to Proposed Proposed maximum Amount of be registered be maximum aggregate offering price Registration Fee registered price per share - ------------------------------------------------------------------------------------------------------ Common Stock, par 181,848 $0.67 $121,838.16 $38.14 value $.01 per share ======================================================================================================
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933 (the "Securities Act") and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of certain documents by reference. The following documents filed with the Securities and Exchange Commission are incorporated herein by reference: (a)(1) Cable Design Technologies Corporation's (the "Registrant") Annual Report on Form 10-K for the fiscal year ended July 31, 1996; (a)(2) The Registrant's Registration Statement on Form S-3 ("Form S-3") originally filed on January 23, 1996 (File No. 333-00554), as amended by Amendment No. 1 filed on February 6, 1996 and Post-Effective No. 1 filed on February 28, 1996, containing a prospectus filed on February 29, 1996 pursuant to Rule 424(b) under the Securities Act. (b) The description of the Registrant's Common Stock contained in Form S-3 under the caption "Description of Capital Stock." All reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement, but prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. 1 Item 6. Indemnification of Directors and Officers. Section 145 of the General Corporation Law of the State of Delaware permits indemnification of, and certain expense advancements to, directors, employees and agents of corporations under certain conditions and subject to certain limitations. ARTICLE NINE of the Amended and Restated Certificate of Incorporation (the "Certificate") of the Registrant provides that the personal liability of the directors of the Registrant is eliminated to the fullest extent permitted by Paragraph (7) of Subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be amended or supplemented. ARTICLE V of the By-Laws of the Registrant provides as follows: ARTICLE V INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS Section 1. Nature of Indemnity. Each person who was or is made a party or --------- ------------------- is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer, of the corporation or is or was serving at the request of the corporation as a director, officer, employee, fiduciary, or agent of another corporation or of a partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless by the corporation to the fullest extent which it is empowered to do so by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment) against all expense, liability and loss (including attorneys' fees actually and reasonably incurred by such person in connection with such proceeding and such indemnification shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in Section 2 hereof, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the Board of Directors of the corporation. The right to indemnification conferred in this Article V shall be a contract right and, subject to Sections 2 and 5 hereof, shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition. The corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers. Section 2. Procedure for Indemnification of Directors and Officers. Any ---------- ------------------------------------------------------- indemnification of a director or officer of the corporation under Section 1 of this Article V or advance or expenses under Section 5 of this Article V shall be made promptly, and in any event within 30 days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within sixty days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within 30 days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person's costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action 2 brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. Section 3. Article Not Exclusive. The rights to indemnification and the --------- --------------------- payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise. Section 4. Insurance. The corporation may purchase and maintain insurance --------- --------- on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article V. Section 5. Expenses. Expenses incurred by any person described in Section --------- -------- 1 of this Article V in defending a proceeding shall be paid by the corporation in advance of such proceeding's final disposition unless otherwise determined by the Board of Directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and condition, if any, as the Board of Directors deems appropriate. Section 6. Employee and Agents. Persons who are not covered by the ---------- ------------------- foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the Board of Directors. Section 7. Contract Rights. The provisions of this Article V shall be --------- --------------- deemed to a contract right between the corporation and each director or officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect, any repeal or modification of this Article V or any such law shall not affect any rights or obligations then existing with respect to any state of facts or proceeding then existing. Section 8. Merger or Consolidation. For purposes of this Article V, --------- ----------------------- references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including 3 any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Reference is made to the Exhibit Index that immediately precedes the exhibits filed with this Registration Statement. Item 9. Undertakings. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement; (i) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby further undertakes that, for the purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of any employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as the indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore 4 unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of express expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 5 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Pittsburgh, State of Pennsylvania, on this 6th day of December, 1996. CABLE DESIGN TECHNOLOGIES CORPORATION By: /s/Paul M. Olson ---------------------------------------- Paul M. Olson President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Paul M. Olson and Kenneth O. Hale his true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, full power and authority to do and perform such, each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney- in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act this Registration Statement and the foregoing Power of Attorney have been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/Bryan C. Cressey Chairman of the Board, Director December 6, 1996 - -------------------------- Bryan C. Cressey /s/Paul M. Olson Director, President, Chief Executive Officer December 6, 1996 - -------------------------- Paul M. Olson (Principal Executive Officer) /s/Kenneth O. Hale Vice President, Chief Financial Officer, Secretary December 6, 1996 - -------------------------- Kenneth O. Hale (Principal Financial and Principal Accounting Officer) /s/Bernard J. Bannan Director December 6, 1996 - -------------------------- Bernard J. Bannan /s/Myron S. Gelbach, Jr. Director December 6, 1996 - -------------------------- Myron S. Gelbach, Jr. /s/Michael F.O. Harris Director December 6, 1996 - -------------------------- Michael F.O. Harris /s/Glenn Kalnasy Director December 6, 1996 - -------------------------- Glenn Kalnasy /s/Richard C. Tuttle Director December 6, 1996 - -------------------------- Richard C. Tuttle /s/Paul M. Olson Attorney-in-Fact December 6, 1996 - -------------------------- Paul M. Olson /s/Kenneth O. Hale Attorney-in-Fact December 6, 1996 - -------------------------- Kenneth O. Hale
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION - ----------- ----------- 4.1 Consulting Agreement dated July 14, 1988, among Intercole Holding Corporation (subsequently renamed Cable Design Technologies Corporation), Intercole Inc. and Michael F.O. Harris 4.2 Consulting Agreement dated July 14, 1988, among Intercole Holding Corporation (subsequently renamed Cable Design Technologies Corporation), Intercole Inc. and Glenn Kalnasy 5.1 Opinion and consent of Kirkland & Ellis, special counsel to the Registrant. 15 Not Applicable. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1). 24.1 Powers of Attorney (included in signature page). 99 Not Applicable.
I-1 EX-4.1 2 CONSULTING AGREEMENT EXHIBIT 4.1 CONSULTING AGREEMENT -------------------- This Agreement is made as of July 14, 1988, by and among Intercole Holding Corporation, a Delaware corporation ("Holding"), Intercole Inc., a Washington corporation (the "Company"), and Michael F.O. Harris (the "Consultant"). Holding, the Company and the Consultant desire to enter into an agreement pursuant to which the Consultant will provide consulting services to the Company and will purchase certain shares of Holding's Class A Common Stock, par value $.Ol per share (the "Stock"). In addition, Holding shall grant the Consultant certain options to acquire shares of Stock as provided herein (the "Options"). All of the shares of Stock issued hereunder and all shares of Stock issued upon exercise of the Options are referred to herein as "Consultant Stock". The execution and delivery of this Agreement by Holding, the Company and the Consultant are conditions to the purchase of the Company's securities by Golder, Thoma, Cressey Fund II ("GTC"), The Prudential Insurance Company of America and Pruco Life Insurance Company (the "Investors"), pursuant to the Investors Subscription and Stockholders Agreement of even date herewith. Certain provisions of this Agreement are for the benefit of the Investors and will be enforceable by the Investors. Capitalized terms not otherwise defined herein have the meaning set forth in paragraph 20 hereof. The parties hereto agree as follows: CONSULTING TERMS 1. Consulting Services. In consideration of the right to purchase the ------------------- Stock hereunder and the granting of the Options, the Consultant hereby agrees to serve as an independent contractor, and not as an employee, to render consulting services to the Company as hereinafter provided for a period commencing on the date of this Agreement and ending on the date on which this Agreement is terminated pursuant to paragraph 4 below (the "Consulting Period"). During the Consulting Period, the Consultant will render such consulting services to the Company in connection with the Company's business as the Company from time to time requests. The Consultant shall have no authority to act, incur expenses or other obligations or make any authority to act, incur expenses or other obligations or make any commitments on behalf of the Company or otherwise bind the Company without the prior specific written approval of the Company. 2. Board Membership. During the Consulting Period, the Consultant ---------------- will serve on Holding's board of directors (the "Board") as requested by Holding and its shareholders. 3. Confidential Information. The Consultant acknowledges that the ------------------------ information, observations and data obtained by him during the course of his performance under this Agreement concerning the business or affairs of the Company and Holding and their respective affiliates are the property of the Company. Therefore, the Consultant agrees that he will not disclose to any unauthorized person or use for his own account any of such information, observations or data without Holding's written consent, unless and to the extent that the aforementioned matters become generally known to and available for use by the public other than as a result of the Consultant's acts or omissions to act. 4. Termination of Consulting Period. Holding or the Consultant may -------------------------------- terminate the Consulting Period by providing written notice thereof to the other party with written notice at least 60 days prior to the effective time of the termination; provided however that the Consulting Period shall not terminate until the termination of the Northern Consulting Agreement dated the date hereof. CONSULTANT STOCK AND OPTIONS 5. Purchase and Sale of Stock and Grant of Options. ----------------------------------------------- (a) On the date hereof, the Consultant will purchase, and Holding will sell, 92,749 shares of Stock at a price per share of $.727. The Company will deliver to the Consultant a certificate or certificates representing such shares of Consultant Stock, and, upon the receipt of such certificates), Consultant will deliver to the Company a check (or a promissory note on terms and conditions satisfactory to Holding) in the amount of the full purchase price therefore. (b) The Company hereby grants to the Consultant the Option to purchase from Holding upon the terms and subject to the conditions hereinafter set forth up to 107,251 shares of the Stock (the "Option Shares") at a purchase price of $.727 per share. (c) The Consultant represents and warrants that the Consultant Stock and Option to be acquired by him pursuant to this Agreement will be acquired for his own account and not with a view to, or present intention of, distribution thereof in violation of the Securities Act of 1933, as amended (the "1933 Act"), and will not be disposed of in contravention of the 1933 Act. (d) The Consultant acknowledges that he is able to bear the economic risk of his investment in the Consultant Stock for an indefinite period of time because the Consultant Stock, 2 when issued, will not have been registered under the 1933 Act and, therefore, cannot be sold unless subsequently registered under the 1933 Act or an exemption from such registration is available. (e) The Consultant represents and warrants that he has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of Consultant Stock and Option and has had full access to such other information concerning Holding as he has requested. (f) The Consultant agrees that within 30 days after he purchases any Consultant Stock from Holding, he will make an effective election with the Internal Revenue Service under Section 83(b) of the Internal Revenue Code and the regulations promulgated thereunder in the form attached hereto as Appendix (g) The Consultant acknowledges that the Consultant Stock and Option to be issued hereunder are being issued in connection with the Consultant's compensation for the consulting services to be rendered hereunder and but for Consultant's agreement to provide services hereunder, the Executive would not be permitted to purchase the Stock hereunder. This Agreement is a written contract relating to the compensation of the Consultant. 6. Vesting of Option Terms. ----------------------- (a) The Option shall become exercisable for Option Shares in installments. The portion of the total number of Option Shares which are exercisable shall be determined as follows:
Cumulative Percentage of Total Number of Shares of Common Stock For Which Option Date is Exercisable ---- -------------- Prior to the first anniversary hereof 0% On and after the first anniversary 20% hereof but prior to the second anniversary hereof On and after the second anniversary 40% hereof but prior to the third anniversary hereof
3
Cumulative Percentage of Total Number of Shares of Common Stock For Which Option Date is Exercisable ---- -------------- On and after the third anniversary hereof but prior to the fourth anniversary hereof 60% On and after the fourth anniversary 80% hereof but prior to the fifth anniversary hereof On and after the fifth anniversary 100% hereof
As of any given date, all Option Shares which the Consultant has become eligible to purchase are referred to as "Vested Option Shares" and all Option Shares which the Consultant has not yet become eligible to purchase are referred to as "Unvested Option Shares." Notwithstanding the foregoing, no Unvested Option Shares shall become Vested Option Shares after the date on which the Consulting Period has terminated for whatever reason or no reason (including, without limitation, death, disability or termination with or without cause) (the "Termination Date"); provided that after the first anniversary hereof if the Termination Date occurs on any date other than an anniversary date hereof, the percentage of Option Shares treated as Vested Option Shares will be the percentage set forth for the previous anniversary date increased by a pro rata share of the next percentage change based upon the number of days elapsed between the Termination Date and the previous anniversary date; and further provided that all Unvested Option Shares shall become Vested Option Shares immediately prior to, but contingent upon, the consummation of a Sale of Holding (as such term is defined in paragraph (c) below). (b) The Consultant (or such Optionee's estate or legal representative) may only exercise the Option with respect to the Vested Option Shares until the first to occur of (i) the tenth anniversary of the date hereof, (ii) the consummation of a Sale of Holding, or (iii) 10 days after the Termination Date. Neither the Consultant nor such Consultant's estate or legal representative may exercise the Options with respect to Unvested Qualified Options and all of Optionee's rights with respect to the Unvested Options shall terminate as of the Termination Date. (c) As used herein, the term "Sale of Holding" means (i) any sale of all or substantially all of the Holding's consolidated assets in any single transaction or series of 4 related transactions, (ii) any merger or consolidation to which Holding is a party if, after giving effect to such merger or consolidation, persons who were stockholders of Holding immediately prior to such merger or consolidation cease to own capital stock of the surviving or resulting corporation with the ordinary voting power to elect a majority of the board of directors of the surviving or resulting corporation, (iii) the consummation of a registered public offering of the Stock pursuant to a registration statement which has become effective under the Securities Act of 1933, as amended, at a price per share of at least $3.65 (as such number is equitably adjusted for stock splits, stock dividends and other recapitalizations affecting the Stock) and the net proceeds of which offer to Holding are at least $15 million, or (iv) any sale of more than 70% of the shares of Stock originally issued to GTC pursuant to the Stock Purchase Agreement dated the date hereof between the Company and CTC in any single transaction or series of related transactions. 7. Other Conditions and Limitations. The Option shall not be -------------------------------- transferable by the Consultant otherwise than by will or by the laws of descent and distribution, and the Option shall be exercisable during the lifetime of the Consultant by the Consultant only. 8. Exercise of Option. Written notice of the exercise of any Option ------------------ or any portion thereof shall be given to Holding at its principal office accompanied by the Option price payable by check. 9. Stock Dividends; Stock Splits; Stock Combination; ------------------------------------------------- Recapitalizations. Appropriate adjustment (in number, kind and price) shall be - ----------------- made in the Option Shares to give effect to any stock dividends, stock splits, stock combinations, recapitalizations and other similar changes in the capital structure of Holding after the grant of the Option. 10. Merger; Sale of Assets; Dissolution. In the event of a change in ----------------------------------- the Stock resulting from a merger or consolidation to which Holding is a party which does not result in a Sale of Holding, the number and kind of shares then subject to the Option and the price per share thereof shall be appropriately adjusted in such manner as the Board or the Compensation Committee thereof may deem equitable to prevent substantial dilution or enlargement of the rights available or granted hereunder. 11. Miscellaneous. The Consultant shall have no rights as a ------------- stockholder with respect to the shares subject to the Option until the exercise of the Option and the issuance of a stock certificate for the shares with respect to which the Option shall have been exercised. Nothing herein contained shall impose 5 any obligation on Holding or any of its subsidiaries or the Consultant with respect to the Consultant's continued employment by Holding or any of its subsidiaries or to seek a Sale of Holding. Nothing herein contained shall impose any obligation upon the Consultant to exercise the Option. Holding makes no representation as to the tax treatment to the Consultant upon receipt or exercise of the Option or sale or other disposition of the shares covered by such Option. STOCK TERMS 12. Repurchase Option. ----------------- (a) Upon termination of the Consulting Period for any reason or no reason (including, without limitation, death, disability or termination with or without cause), the Consultant Stock, whether held by the Consultant or one or more transferees, will be subject to repurchase by Holding pursuant to the terms and conditions set forth in this paragraph 12 (the "Repurchase Option"). (b) On or after the Termination Date but prior to the 180th day following the Termination Date, Holding may elect to purchase all or any portion of the Consultant Stock at a price per share equal to 150% of the sum of (i) such share's Original Cost and (ii) such share's pro rata portion (on a fully- diluted basis determined as of the date of purchase, assuming the-exercise and conversion of all outstanding options, warrants and convertible securities and ignoring any restrictions on the convertibility or exercise of such options, warrants and convertible securities) of the difference between (A) Holding's cumulative, consolidated net earnings from August 1, 1988 to the end of Holding's fiscal quarter immediately preceding the date of repurchase as reflected on Holding's normally prepared financial statements (audited, if available) and (B) any dividends paid or accrued on any preferred stock of any Subsidiary or any common stock of Holding. Holding's normally prepared financial statement will be prepared in accordance with generally accepted accounting principles consistently applied except for differences concurred in by Holding's auditors. (c) The Board may elect to exercise, pursuant to paragraph 12(b), Holding's right to purchase all or any portion of the shares of Consultant Stock by delivering written notice (the "Repurchase Notice") to the holder or holders of Consultant Stock. The Repurchase Notice will set forth the number of shares of Consultant Stock to be acquired from such holder, the aggregate consideration to be paid for such shares and the time and place for the closing of the transaction. The number of shares to be repurchased by Holding shall first be satisfied to the extent possible from the shares of Consultant Stock held by the 6 Consultant at the time of delivery of the Repurchase Notice. if the number of shares of Consultant Stock then held by Consultant is less than the total number of shares of Consultant Stock Holding has elected to purchase, then Holding shall purchase the remaining shares elected to be purchased from the other holder(s) of Consultant Stock, pro rata according to the number of shares of Consultant Stock held by such other holder(s) at the time of delivery of such Repurchase Notice (determined as nearly as practicable to the nearest share). (d) If for any reason Holding does not elect to purchase all of the shares of Consultant Stock pursuant to the Repurchase Option, the Investors shall be entitled to exercise Holding's Repurchase option in the manner set forth in paragraph 12(c) for the shares of Consultant Stock Holding has not elected to purchase (the "Available Shares"). As soon as practicable after Holding has determined that there will be Available Shares, but in any event within 160 days after the Termination Date, Holding shall deliver written notice (the "Option Notice") to the Investors setting forth the number of Available Shares and the price for each Available Share. Each Investor may elect to purchase its pro rata share of the Available Shares by delivering written notice to Holding within 25 days after receipt of the Option Notice from Holding. As soon as practicable, and in any event within 5 days, after the expiration of such 25-day period, Holding shall notify each holder of Consultant Stock as to the number of shares being purchased from such holder by the Investors (the "Supplemental Repurchase Notice"). At the time Holding delivers the Supplemental Repurchase Notice to the holder(s) of Consultant Stock, each Investor shall also receive written notice from Holding setting forth the number of shares it is entitled to purchase, the aggregate purchase price and the time and place of the closing of the transaction. For the purpose of this paragraph 12(d), each Investor's "pro rata share" will be equal to the percentage determined by dividing (i) the number of shares of Stock (on a fully-diluted basis assuming the exercise or conversion of any options, warrants ' or convertible securities held by such Investor regardless of any restrictions on such exercise or conversion) held by such Investor by (ii) the total number of shares of Stock (on a fully diluted basis) held by the Investors electing to purchase Available Shares. (e) The Closing of the purchase transactions contemplated by this paragraph 12 shall take place on the date designated by Holding in the Repurchase Notice (or the Supplemental Repurchase Notice, as the case may be), which date shall not be more than 30 days and not less than 10 days after the delivery of such notice. Holding will pay for the Consultant Stock to be purchased pursuant to the Repurchase Option by check payable to the holder of such Consultant Stock. Holding will be entitled to 7 receive customary representations and warranties from the seller regarding the sale of the Consultant Stock. (f) For the purposes Of this paragraph 12, Consultant Stock will include all shares of Stock issuable upon exercise or conversion of any options, warrants or convertible securities then held by the Consultant, ignoring any restrictions on the convertibility or exercise of such options, warrants or convertible securities; provided that the price at which the Repurchase Option may be exercised with respect to any such shares of Consultant Stock shall be less any consideration payable by the Consultant if such options, warrants or convertible securities were then exercised or converted. 13. Restrictions on Transfer. ------------------------ (a) The Consultant will not sell, pledge or otherwise transfer any interest in any shares of Consultant Stock except (i) pursuant to the provisions of (A) paragraph 12 or 15 hereof (an "Exempt Transfer") or (B) paragraph 13(c) below or (ii) after the 180th day following the Termination Date (with respect to any shares of Consultant Stock for which the Repurchase Option is not exercised), subject to the provisions of paragraph 13(b) below. (b) At least 60 days prior to making any transfer permitted by clause (ii) of paragraph 13(a) above, the Consultant (or Consultant's transferees) will deliver a written notice (the "Sale Notice") to Holding and the Investor. The Sale Notice will disclose in reasonable detail the identity of the prospective transferees) and the terms and conditions of the proposed transfer. Consultant (and Consultant's transferees) agrees not to consummate any such transfer until 60 days after the Sale Notice has been delivered to Holding and the Investor, unless either Holding or the Investor has exercised its right of first refusal prior to the expiration of such 60-day period. (The date of the first to occur of such events is referred to herein as the Authorization Date.) (c) Holding may elect to purchase all (but not less than all) of the Consultant Stock to be transferred upon the same terms and conditions as those set forth in the Sale Notice by delivering a written notice of such election to the Consultant within 30 days after the receipt of the Sale Notice by Holding. If Holding has not elected to purchase all of the Consultant Stock to be transferred, the Investors may elect to purchase all (but not less than all) of the Consultant Stock to be transferred upon the same terms and conditions as those set forth in the Sale Notice by delivering a written notice of such election to the Consultant within 60 days after the receipt of the Sale Notice by the Investors. If more than one Investor elects to purchase the 8 Consultant Stock pursuant to this paragraph 13(b), each Investor shall have the right to purchase its pro rata share of Consultant Stock to be transferred. For the purpose of this paragraph 13(b), each Investor's "pro rata share" will be equal to the percentage determined by dividing (i) the number of shares of Stock (on a fully-diluted basis assuming the exercise or conversion of any options, warrants or convertible securities held by such Investor regardless of any restrictions on such exercise or conversion) held by such Investor by (ii) the total number of shares of Stock (on a fully diluted basis) held by the Investors electing to purchase Consultant Stock to be transferred herein. Any person who has exercised its right to acquire Consultant Stock pursuant to this paragraph 13(b) shall be given up to 60 days (after it has been determined that such person has such right) to consummate the purchase and sale of Consultant Stock. If neither Holding nor the Investors have elected to purchase all of the Consultant Stock specified in the Sale Notice, Consultant may transfer the Consultant Stock specified in the Sale Notice at a price and on terms no more favorable to the transferees) thereof than specified in the Sale Notice during the 60-day period immediately following the Authorization Date. Any shares of Consultant Stock not transferred within such 60-day period will be subject to the provisions of this paragraph 13(b) upon subsequent transfer. (d) The Consultant may transfer Consultant Stock (i) pursuant to applicable laws of descent and distribution or (ii) among Consultant's family group; provided that the restrictions contained in this Agreement will continue to be applicable to the Consultant Stock after any such transfer and the transferees of such Consultant Stock have agreed in writing to be bound by the provisions of this Agreement. Consultant's "family group" means Consultant's spouse and descendants (whether natural or adopted) and any trust solely for the benefit of Consultant and/or Consultant's spouse and/or descendants. At least 30 days prior to making any transfer of Consultant Stock pursuant to this paragraph 13(c), Consultant will deliver a written notice to Holding which will describe in reasonable detail the identity of the prospective transferees). 14. Additional Restrictions on Transfer. ----------------------------------- (a) The certificates representing the Consultant Stock will bear the following legend: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON _________ __, HAVE NOT BEEN REGISTERED UNDER SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 9 ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN A CONSULTING AGREEMENT BY AND BETWEEN THE ISSUER (THE "COMPANY") AND A CERTAIN CONSULTANT OF THE COMPANY DATED AS OF JULY 14, 1988, A COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE." (b) No holder of Consultant Stock may sell, transfer or dispose of any Consultant Stock (except pursuant to an effective registration statement under the Securities Act of 1933) without first delivering to Holding an opinion of counsel reasonably acceptable in form and substance to Holding that registra- tion under the Securities Act of 1933 is not required in connection with such transfer. (c) Each holder of Consultant Stock agrees not to effect any public sale or distribution of any equity securities of Holding, or any securities convertible into or exchangeable or exercisable for such securities, during the seven days prior to and the 90 days after the effectiveness of any public offering of Holding's securities registered under the Securities Act of 1933, as amended, except pursuant to such underwritten registration if otherwise permitted. 15. Sale of Holding. --------------- (a) If the Board and the holders of a majority of the Stock then outstanding approve the Sale of Holding to an independent third party (the "Approved Sale"), the holders of Consultant Stock will consent to and raise no objections against the Approved Sale of Holding, and if the Approved Sale of Holding is structured as a sale of stock, the holders of Consultant Stock will agree to sell all of their shares of Consultant Stock and rights to acquire shares of Holding's capital stock on the terms and conditions approved by the Board and the holders of a majority of the Stock then outstanding. The holders of Consultant Stock will take all necessary and desirable actions to effect the consummation of the Approved Sale. For purposes of this paragraph 15, an "independent third party" is any person who does not own in excess of 5% of the Stock on a fully-diluted basis, who is not controlling, controlled by or under common control with any such 5% owner of the Stock and who is not the spouse, ancestor or descendant (by birth or adoption) of any such 5% owner of the Stock. 10 (b) The obligations of the holders of Consultant Stock with respect to the Approved Sale of Holding are subject to the satisfaction of the condition that upon the consummation of the Approved Sale, all of the holders of Stock will receive the same form and amount of consideration per share of Stock, or if any holders are given an option as to the form and amount of consideration to be received, all holders will be given the same option. (c) If Holding or the holders of Holding's securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Consultant Stock will, at the request of Holding, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to Holding. If any holder of Consultant Stock appoints the purchaser representative designated by Holding, Holding will pay the fees of such purchaser representative, but if any holder of Consultant Stock declines to appoint the purchaser representative designated by Holding, such holder will appoint another purchaser representative (reasonably acceptable to Holding), and such holder will be responsible for the fees of the purchaser representative so appointed. 16. Definition of Consultant Stock. For all purposes of this ------------------------------ Agreement, Consultant Stock will continue to be Consultant Stock in the hands of any holder other than Consultant (except for Holding, the Investor and purchasers pursuant to an offering registered with the Securities Exchange Commission or purchasers pursuant to a Rule 144 transaction), and each such other holder of Consultant Stock will succeed to all rights and obligations attributable to the Consultant as a holder of Consultant Stock hereunder. Consultant Stock will also include shares of Holding'B capital stock issued with respect to shares of Consultant Stock by way of a stock split, stock dividend or other recapitalization. 17. Termination of Provisions Relating to Consultant Stock. The ------------------------------------------------------ provisions of paragraphs 12, 13 and 15 hereof will terminate upon the first to occur of (i) the date on which Holding has consummated a registered public offering of the Stock pursuant to a registration statement which has become effective under the Securities Act of 1933, as amended, at a price per share of at least $3.65 (as such number is equitably adjusted for any stock splits, stock dividends or other recapitalizations affecting Holding's capital stock) and the net proceeds of which offer to Holding are at least $15 million, (ii) any merger or consolidation to which Holding is a party if, after giving effect to such merger or consolidation, persons who were stockholders of 11 Holding immediately prior to such merger or consolidation cease to own capital stock of the surviving or resulting corporation with the ordinary voting power to elect a majority of the board of directors of the surviving or resulting corporation, (iii) a sale of all, or substantially all, of Holding's assets or capital stock in any transaction or series of related transactions, or (iv) any sale of more than 70% of the shares of Stock originally issued to GTC pursuant to the Stock Purchase Agreement dated the date hereof between the Company and GTC in any single transaction or series of related transactions. 18. Confidential Information. Consultant acknowledges that the ------------------------ information, observations and data obtained by him during the course of the Consulting Period concerning the business or affairs of Holding and its affiliates are the property of Holding. Therefore, Consultant agrees that he will not disclose to any unauthorized person or use for his own account any of such information, observations or data without the Board's written consent, unless and to the extent that the aforementioned matters become generally known to and available for use by the public other than as a result of the Consultant's acts or omissions to act. 19. Notices. Any notice provided for in this Agreement must be in ------- writing and must be personally delivered, mailed by first class mail, or sent by overnight delivery service, to the recipient at the address indicated below: To Holding: Intercole Holding Corporation c/o Golder, Thoma & Cressey 120 S. LaSalle Street - Suite 630 Chicago, IL 60603 Attn. Bryan C. Cressey With copies to: Kirkland & Ellis 655 Fifteenth Street, N.W. Washington, D.C. 20005 Attn. Brian J. Richmand To Consultant: Michael F.O. Harris 1207 Parkside Drive East Seattle, WA 98112 or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party. Any notice under this Agreement will be deemed to have been given when so delivered or mailed. 12 20. Definitions. ----------- The "Original Cost" of each share of Consultant Stock will be equal to $.727 for each share of Stock (as proportionally adjusted for all stock splits, stock dividends and other recapitalizations affecting the Stock subsequent to the date hereof). "Subsidiary" means any corporation of which shares of stock having a majority of the general voting power in electing the board of directors are, at the time as of which any determination is being made, owned by Holding either directly or through its Subsidiaries. 21. Severability. Whenever possible, each provision of this ------------ Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. 22. Complete Agreement. This Agreement, those documents expressly ------------------ referred to herein and other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any prior understand ings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. 23. Counterparts. This Agreement may be executed on separate ------------ counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement. 24. Successors and Assigns. This Agreement is intended to bind and ---------------------- inure to the benefit of and be enforceable by the Consultant and Holding and their respective successors and assigns, except that the Consultant may not assign any of his rights or obligations under paragraph 18. 25. Choice of Law. The corporate law of the State of Delaware will ------------- govern all issues concerning the relative rights of Holding and its shareholders. All other questions concerning the construction, validity and interpretation of this Agreement and the exhibits and schedules hereto will be governed by the internal law, and not the law of conflicts of the State of Illinois. 13 26. Remedies. Each of the parties to this Agreement will be entitled -------- to enforce his or its rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in his or its favor. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in his or its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement. 27. Amendments and Waivers. Any provision of this Agreement may be ---------------------- amended or waived only with the prior written consent of Holding and the Consultant; provided that no amendment or waiver of paragraph 12 or 13 hereof shall be effective without the prior written consent of the Investor. 28. No Employment Terms. No provision of this Agreement shall be ------------------- construed to obligate Holding to employ or engage the Consultant. Holding may terminate the Consulting Period for any reason or no reason (including, without limitation, the Consultant's death, disability or termination with or without cause). * * * * * 14 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above. INTERCOLE HOLDING CORPORATION By /s/Richard C. Tuttle -------------------------------- Its_______________________________ INTERCOLE INC. By /s/Michael F.O. Harris -------------------------------- Its _____________________________ /s/Michael F.O. Harris ---------------------------------- MICHAEL F.O. HARRIS Accepted as of July 13, 1988: GOLDER, THOMA, CRESSEY FUND II By Golder, Thoma & Cressey Its General Partner By /s/Bryan C. Cressey ---------------------------- Its General Partner --------------------------- THE PRUDENTIAL INSURANCE COMPANY OF AMERICA Prucapital Management Inc., agent By /s/Kelvin Pennington ----------------------------------- Its Vice President, Corporate Finance ---------------------------------- PRUCO LIFE INSURANCE COMPANY By /s/Man Walfield ----------------------------------- Its Assistant Vice President ---------------------------------- EX-4.2 3 CONSULTING AGREEMENT EXHIBIT 4.2 CONSULTING AGREEMENT -------------------- This Agreement is made as of July 14, 1988, by and among Intercole Holding Corporation, a Delaware corporation ("Holding"), Intercole Inc., a Washington corporation (the "Company"), and Glenn Kalnasy (the "Consultant"). Holding, the Company and the Consultant desire to enter into an agreement pursuant to which the Consultant will provide consulting services to the Company and will purchase certain shares of Holding's Class A Common Stock, par value $.Ol per share (the "Stock"). In addition, Holding shall grant the Consultant certain options to acquire shares of Stock as provided herein (the "Options"). All of the shares of Stock issued hereunder and all shares of Stock issued upon exercise of the Options are referred to herein as "Consultant Stock". The execution and delivery of this Agreement by Holding, the Company and the Consultant are conditions to the purchase of the Company's securities by Golder, Thoma, Cressey Fund II ("GTC"), The Prudential Insurance Company of America and Pruco Life Insurance Company (the "Investors"), pursuant to the Investors Subscription and Stockholders Agreement of even date herewith. Certain provisions of this Agreement are for the benefit of the Investors and will be enforceable by the Investors. Capitalized terms not otherwise defined herein have the meaning set forth in paragraph 20 hereof. The parties hereto agree as follows: CONSULTING TERMS 1. Consulting Services. In consideration of the right to ------------------- purchase the Stock hereunder and the granting of the Options, the Consultant hereby agrees to serve as an independent contractor, and not as an employee, to render consulting services to the Company as hereinafter provided for a period commencing on the date of this Agreement and ending on the date on which this Agreement is terminated pursuant to paragraph 4 below (the "Consulting Period"). During the Consulting Period, the Consultant will render such consulting services to the Company in connection with the Company's business as the Company from time to time requests. The Consultant shall have no authority to act, incur expenses or other obligations or make any authority to act, incur expenses or other obligations or make any commitments on behalf of the Company or otherwise bind the Company without the prior specific written approval of the Company. 2. Board Membership. During the Consulting Period, the ---------------- Consultant will serve on Holding's board of directors (the "Board") as requested by Holding and its shareholders. 3. Confidential Information. The Consultant acknowledges that the ------------------------ information, observations and data obtained by him during the course of his performance under this Agreement concerning the business or affairs of the Company and Holding and their respective affiliates are the property of the Company. Therefore, the Consultant agrees that he will not disclose to any unauthorized person or use for his own account any of such information, observations or data without Holding's written consent, unless and to the extent that the aforementioned matters become generally known to and available for use by the public other than as a result of the Consultant's acts or omissions to act. 4. Termination of Consulting Period. Holding or the Consultant -------------------------------- may terminate the Consulting Period by providing written notice thereof to the other party with written notice at least 60 days prior to the effective time of the termination; provided however that the Consulting Period shall not terminate until the termination of the Northern Consulting Agreement dated the date hereof. CONSULTANT STOCK AND OPTIONS 5. Purchase and Sale of Stock and Grant of Options. ----------------------------------------------- (a) On the date hereof, the Consultant will purchase, and Holding will sell, 92,749 shares of Stock at a price per share of $.727. The Company will deliver to the Consultant a certificate or certificates representing such shares of Consultant Stock, and, upon the receipt of such certificates), Consultant will deliver to the Company a check (or a promissory note on terms and conditions satisfactory to Holding) in the amount of the full purchase price therefore. (b) The Company hereby grants to the Consultant the Option to purchase from Holding upon the terms and subject to the conditions hereinafter set forth up to 107,251 shares of the Stock (the "Option Shares") at a purchase price of $.727 per share. (c) The Consultant represents and warrants that the Consultant Stock and Option to be acquired by him pursuant to this Agreement will be acquired for his own account and not with a view to, or present intention of, distribution thereof in violation of the Securities Act of 1933, as amended (the "1933 Act"), and will not be disposed of in contravention of the 1933 Act. (d) The Consultant acknowledges that he is able to bear the economic risk of his investment in the Consultant Stock for an indefinite period of time because the Consultant Stock, 2 when issued, will not have been registered under the 1933 Act and, therefore, cannot be sold unless subsequently registered under the 1933 Act or an exemption from such registration is available. (e) The Consultant represents and warrants that he has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of Consultant Stock and Option and has had full access to such other information concerning Holding as he has requested. (f) The Consultant agrees that within 30 days after he purchases any Consultant Stock from Holding, he will make an effective election with the Internal Revenue Service under Section 83(b) of the Internal Revenue Code and the regulations promulgated thereunder in the form attached hereto as Appendix (g) The Consultant acknowledges that the Consultant Stock and Option to be issued hereunder are being issued in connection with the Consultant's compensation for the consulting services to be rendered hereunder and but for Consultant's agreement to provide services hereunder, the Executive would not be permitted to purchase the Stock hereunder. This Agreement is a written contract relating to the compensation of the Consultant. 6. Vesting of Option Terms. ----------------------- (a) The Option shall become exercisable for Option Shares in installments. The portion of the total number of Option Shares which are exercisable shall be determined as follows: 3 Cumulative Percentage of Total Number of Shares of Common Date Stock For Which Option is Exercisable ---- ------------------------------------- Prior to the first anniversary hereof 0% On and after the first anniversary hereof but prior to the second anniversary hereof 20% On and after the second anniversary hereof but prior to the third anniversary hereof 40% On and after the third anniversary hereof but prior to the fourth anniversary hereof 60% On and after the fourth anniversary hereof but prior to the fifth anniversary hereof 80% On and after the fifth anniversary hereof 100% As of any given date, all Option Shares which the Consultant has become eligible to purchase are referred to as "Vested Option Shares" and all Option Shares which the Consultant has not yet become eligible to purchase are referred to as "Unvested Option Shares." Notwithstanding the foregoing, no Unvested Option Shares shall become Vested Option Shares after the date on which the Consulting Period has terminated for whatever reason or no reason (including, without limitation, death, disability or termination with or without cause) (the "Termination Date"); provided that after the first anniversary hereof if the Termination Date occurs on any date other than an anniversary date hereof, the percentage of Option Shares treated as Vested Option Shares will be the percentage set forth for the previous anniversary date increased by a pro rata share of the next percentage change based upon the number of days elapsed between the Termination Date and the previous anniversary date; and further provided that all Unvested Option Shares shall become Vested Option Shares immediately prior to, but contingent upon, the consummation of a Sale of Holding (as such term is defined in paragraph (c) below). (b) The Consultant (or such Optionee's estate or legal representative) may only exercise the Option with respect to the Vested Option Shares until the first to occur of (i) the tenth anniversary of the date hereof, (ii) the consummation of a Sale of Holding, or (iii) 10 days after the Termination Date. Neither the Consultant nor such Consultant's estate or legal representative may exercise the Options with respect to Unvested Qualified Options and all of Optionee's rights with respect to the Unvested Options shall terminate as of the Termination Date. 4 (c) As used herein, the term "Sale of Holding" means (i) any sale of all or substantially all of the Holding's consolidated assets in any single transaction or series of related transactions, (ii) any merger or consolidation to which Holding is a party if, after giving effect to such merger or consolidation, persons who were stockholders of Holding immediately prior to such merger or consolidation cease to own capital stock of the surviving or resulting corporation with the ordinary voting power to elect a majority of the board of directors of the surviving or resulting corporation, (iii) the consummation of a registered public offering of the Stock pursuant to a registration statement which has become effective under the Securities Act of 1933, as amended at a price per share of at least $3.65 (as such number is equitably adjusted for stock splits, stock dividends and other recapitalizations affecting the Stock) and the net proceeds of which offer to Holding are at least $15 million, or (iv) any sale of more than 70% of the shares of Stock originally issued to GTC pursuant to the Stock Purchase Agreement dated the date hereof between the Company and GTC in any single transaction or series of related transactions. 7. Other Conditions and Limitations. The Option shall not be -------------------------------- transferable by the Consultant otherwise than by will or by the laws of descent and distribution, and the Option shall be exercisable during the lifetime of the Consultant by the Consultant only. 8. Exercise of Option. Written notice of the exercise of any Option or ------------------ any portion thereof shall be given to Holding at its principal office accompanied by the Option price payable by check. 9. Stock Dividends; Stock Splits; Stock Combination; Recapitalizations. ------------------------------------------------------------------- Appropriate adjustment (in number, kind and price) shall be made in the Option Shares to give effect to any stock dividends, stock splits, stock combinations, recapitalizations and other similar changes in the capital structure of Holding after the grant of the Option. 10. Merger; Sale of Assets; Dissolution. In the event of a change in the ----------------------------------- Stock resulting from a merger or consolidation to which Holding is a party which does not result in a Sale of Holding, the number and kind of shares then subject to the Option and the price per share thereof shall be appropriately adjusted in such manner as the Board or the Compensation Committee thereof may deem equitable to prevent substantial dilution or enlargement of the rights available or granted hereunder. 11. Miscellaneous. The Consultant shall have no rights as a stockholder ------------- with respect to the shares subject to the Option until the exercise of the Option and the issuance of a 5 stock certificate for the shares with respect to which the Option shall have been exercised. Nothing herein contained shall impose any obligation on Holding or any of its subsidiaries or the Consultant with respect to the Consultant's continued employment by Holding or any of its subsidiaries or to seek a Sale of Holding. Nothing herein contained shall impose any obligation upon the Consultant to exercise the Option. Holding makes no representation as to the tax treatment to the Consultant upon receipt or exercise of the Option or sale or other disposition of the shares covered by such Option. STOCK TERMS 12. Repurchase Option. ----------------- (a) Upon termination of the Consulting Period for any reason or no reason (including, without limitation, death, disability or termination with or without cause), the Consultant Stock, whether held by the Consultant or one or more transferees, will be subject to repurchase by Holding pursuant to the terms and conditions set forth in this paragraph 12 (the "Repurchase Option"). (b) On or after the Termination Date but prior to the 180th day following the Termination Date, Holding may elect to purchase all or any portion of the Consultant Stock at a price per share equal to 150% of the sum of (i) such share's Original Cost and (ii) such share's pro rata portion (on a fully-diluted basis determined as of the date of purchase, assuming the exercise and conversion of all outstanding options, warrants and convertible securities and ignoring any restrictions on the convertibility or exercise of such options, warrants and convertible securities) of the difference between (A) Holding's cumulative, consolidated net earnings from August 1, 1988 to the end of Holding's fiscal quarter immediately preceding the date of repurchase as reflected on Holding's normally prepared financial statements (audited, if available) and (B) any dividends paid or accrued on any preferred stock of any Subsidiary or any common stock of Holding. Holding's normally prepared financial statements will be prepared in accordance with generally accepted accounting principles consistently applied except for differences concurred in by Holding's auditors. (c) The Board may elect to exercise, pursuant to paragraph 12(b), Holding's right to purchase all or any portion of the shares of Consultant Stock by delivering written notice (the "Repurchase Notice") to the holder or holders of Consultant Stock. The Repurchase Notice will set forth the number of shares of Consultant Stock to be acquired from such holder, the aggregate consideration to be paid for such shares and the time and place for the closing of the transaction. The number of shares 6 to be repurchased by Holding shall first be satisfied to the extent possible from the shares of Consultant Stock held by the Consultant at the time of delivery of the Repurchase Notice. If the number of shares of Consultant Stock then held by Consultant is less than the total number of shares of Consultant Stock Holding has elected to purchase, then Holding shall purchase the remaining shares elected to be purchased from the other holder(s) of Consultant Stock, pro rata according to the number of shares of Consultant Stock held by such other holder(s) at the time of delivery of such Repurchase Notice (determined as nearly as practicable to the nearest share). (d) If for any reason Holding does not elect to purchase all of the shares of Consultant Stock pursuant to the Repurchase Option, the Investors shall be entitled to exercise Holding's Repurchase Option in the manner set forth in paragraph 12(c) for the shares of Consultant Stock Holding has not elected to purchase (the "Available Shares"). As soon as practicable after Holding has determined that there will be Available Shares, but in any event within 160 days after the Termination Date, Holding shall deliver written notice (the "Option Notice") to the Investors setting forth the number of Available Shares and the price for each Available Share. Each Investor may elect to purchase its pro rata share of the Available Shares by delivering written notice to Holding within 25 days after receipt of the Option Notice from Holding. As soon as practicable, and in any event within 5 days, after the expiration of such 25.- day period, Holding shall notify each holder of Consultant Stock as to the number of shares being purchased from such holder by the Investors (the "Supplemental Repurchase Notice"). At the time Holding delivers the Supplemental Repurchase Notice to the holder(s) of Consultant Stock, each Investor shall also receive written notice from Holding setting forth the number of shares it is entitled to purchase, the aggregate purchase price and the time and place of the closing of the transaction. For the purpose of this paragraph 12(d), each Investor's "pro rata share" will be equal to the percentage determined by dividing (i) the number of shares of Stock (on a fully-diluted basis assuming the exercise or conversion of any options, warrants or convertible securities held by such Investor regardless of any restrictions on such exercise or conversion) held by such Investor by (ii) the total number of shares of Stock (on a fully diluted basis) held by the Investors electing to purchase Available Shares. (e) The closing of the purchase transactions contemplated by this paragraph 12 shall take place on the date designated by Holding in the Repurchase Notice (or the Supplemental Repurchase Notice, as the case may be), which date shall not be more than 30 days and not less than 10 days after the delivery of such notice. Holding will pay for the Consultant Stock'to be purchased pursuant to the Repurchase Option by check payable to 7 the holder of such Consultant Stock. Holding will be entitled to receive customary representation and warranties from the seller regarding the sale of the Consultant Stock. (f) For the purposes of this paragraph 12, Consultant Stock will include all shares of Stock issuable upon exercise or conversion of any options, warrants or convertible securities then held by the Consultant, ignoring any restrictions on the convertibility or exercise of such options, warrants or convertible securities; provided that the price at which the Repurchase Option may be exercised with respect to any such shares of Consultant Stock shall be less any consideration payable by the Consultant if such options, warrants or convertible securities were then exercised or converted. 13. Restrictions on Transfer. ------------------------ (a) The Consultant will not sell, pledge or otherwise transfer any interest in any shares of Consultant Stock except (i) pursuant to the provisions of (A) paragraph 12 or 15 hereof (an "Exempt Transfer") or (B) paragraph 13(c) below or (ii after the 180th day following the Termination Date (with respect to any shares of Consultant Stock for which the Repurchase Option is not exercised), subject to the provisions of paragraph 13(b) below. (b) At least 60 days prior to making any transfer permitted by clause (ii) of paragraph 13(a) above, the Consultant (or Consultant's transferees) will deliver a written notice (the "Sale Notice") to Holding and the Investor. The Sale Notice will disclose in reasonable detail the identity of the prospective transferees) and the terms and conditions of the proposed transfer. Consultant (and Consultant's transferees) agrees not to consummate any such transfer until 60 days after the Sale Notice has been delivered to Holding and the Investor, unless either Holding or the Investor has exercised its right of first refusal prior to the expiration of such 60-day period. (The date of the first to occur of such events is referred to herein as the Authorization Date.) Holding may elect to purchase all (but not less than all) of the Consultant Stock to be transferred upon the same terms and conditions as those set forth in the Sale Notice by delivering a written notice of such election to the Consultant within 30 days after the receipt of the Sale Notice by Holding. If Holding has not elected to purchase all of the Consultant Stock to be transferred, the Investors may elect to purchase all (but not less than all) of the Consultant Stock to be transferred upon the same terms and conditions as those set forth in the Sale Notice by delivering a written notice of such election to the Consultant within 60 days after the receipt of the Sale Notice by the Investors. If more than one Investor elects to purchase the 8 Consultant Stock pursuant to this paragraph 13(b), each Investor shall have the right to purchase its pro rata share of Consultant Stock to be transferred. For the purpose of this paragraph 13(b), each Investor's "pro rata share" will be equal to the percentage determined by dividing (i) the number of shares of Stock (on a fully-diluted basis assuming the exercise or conversion of any options, warrants or convertible securities held by such Investor regardless of any restrictions on such exercise or conversion) held by such Investor by (ii) the total number of shares of Stock (on a fully diluted basis) held by the Investors electing to purchase Consultant Stock to be transferred herein. Any person who has exercised its right to acquire Consultant Stock pursuant to this paragraph 13(b) shall be given up to 60 days (after it has been determined that such person has such right) to consummate the purchase and sale of Consultant Stock. If neither Holding nor the Investors have elected to purchase all of the Consultant Stock specified in the Sale Notice, Consultant may transfer the Consultant Stock specified in the Sale Notice at a price and on terms no more favorable to the transferees) thereof than specified in the Sale Notice during the 60-day period immediately following the Authorization Date. Any shares of Consultant Stock not transferred within such 60-day period will be subject to the provisions of this paragraph 13(b) upon subsequent transfer. (c) The Consultant may transfer Consultant Stock (i) pursuant to applicable laws of descent and distribution or (ii) among Consultant's family group; provided that the restrictions contained in this Agreement will continue to be applicable to the Consultant Stock after any such transfer and the transferees of such Consultant Stock have agreed in writing to be bound by the provisions of this Agreement. Consultant's "family group" means Consultant's spouse and descendants (whether natural or adopted) and any trust solely for the benefit of Consultant and/or Consultant's spouse and/or descendants. At least 30 days prior to making any transfer of Consultant Stock pursuant to this paragraph 13(c), Consultant will deliver a written notice to Holding which will describe in reasonable detail the identity of the prospective transferees). 14. Additional Restrictions on Transfer. ----------------------------------- (a) The certificates representing the Consultant Stock will bear the following legend: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON ______ __, ____, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER. 9 THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN A CONSULTING AGREEMENT BY AND BETWEEN THE ISSUER (THE "COMPANY") AND A CERTAIN CONSULTANT OF THE COMPANY DATED AS OF JULY 14, 1988, A COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE." (b) No holder of Consultant Stock may sell, transfer or dispose of any Consultant Stock (except pursuant to an effective registration statement under the Securities Act of 1933) without first delivering to Holding an opinion of counsel reasonably acceptable in form and substance to Holding that registra- tion under the Securities Act of 1933 is not required in connection with such transfer. (c) Each holder of Consultant Stock agrees not to effect any public sale or distribution of any equity securities of Holding, or any securities convertible into or exchangeable or exercisable for such securities, during the seven days prior to and the 90 days after the effectiveness of any public offering of Holding's securities registered under the Securities Act of 1933, as amended, except pursuant to such underwritten registration if otherwise permitted. 15. Sale of Holding. --------------- (a) If the Board and the holders of a majority of the Stock then outstanding approve the Sale of Holding to an independent third party (the "Approved Sale"), the holders of Consultant Stock will consent to and raise no objections against the Approved Sale of Holding, and if the Approved Sale of Holding is structured as a sale of stock, the holders of Consultant Stock will agree to sell all of their shares of Consultant Stock and rights to acquire shares of Holding's capital stock on the terms and conditions approved by the Board and the holders of a majority of the Stock then outstanding. The holders of Consultant Stock will take all necessary and desirable actions to effect the consummation of the Approved Sale. For purposes of this paragraph 15, an "independent third party" is any person who doer, not own in excess of 5% of the Stock on a fully-diluted basis, who is not controlling, controlled by or under common control with any such 5% owner of the Stock and who is not the spouse, ancestor or descendant (by birth or adoption) of any such 5% owner of the Stock. (b) The obligations of the holders of Consultant Stock with respect to the Approved Sale of Holding are subject to the satisfaction of the condition that upon the consummation of the Approved Sale, all of the holders of Stock will receive the same 10 form and amount of consideration per share of Stock, or if any holders are given an option as to the form and amount of consideration to be received, all holders will be given the same option. (c) If Holding or the holders of Holding's securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Consultant Stock will, at the request of Holding, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to Holding. If any holder of Consultant Stock appoints the purchaser representative designated by Holding, Holding will pay the fees of such purchaser representative, but if any holder of Consultant Stock declines to appoint the purchaser representative designated by Holding, such holder will appoint another purchaser representative (reasonably acceptable to Holding), and such holder will be responsible for the fees of the purchaser representative so appointed. 16. Definition of Consultant Stock. For all purposes of this ------------------------------ Agreement, Consultant Stock will continue to be Consultant Stock in the hands of any holder other than Consultant (except for Holding, the Investor and purchasers pursuant to an offering registered with the Securities Exchange Commission or purchasers pursuant to a Rule 144 transaction), and each such other holder of Consultant Stock will succeed to all rights and obligations attributable to the Consultant as a holder of Consultant Stock hereunder. Consultant Stock will also include shares of Holding's capital stock issued with respect to shares of Consultant Stock by way of a stock split, stock dividend or other recapitalization. 17. Termination of Provisions Relating to Consultant Stock. The ------------------------------------------------------ provisions of paragraphs 12, 13 and 15 hereof will terminate upon the first to occur of (i) the date on which Holding has consummated a registered public offering of the Stock pursuant to a registration statement which has become effective under the Securities Act of 1933, as amended, at a price per share of at least $3.65 (as such number is equitably adjusted for any stock splits, stock dividends or other recapitalizations affecting Holding's capital stock) and the net proceeds of which offer to Holding are at least $15 million, (ii) any merger or consolidation to which Holding is a party if, after giving effect to such merger or consolidation, persons who were stockholders of Holding immediately prior to such merger or consolidation cease to own capital stock of the surviving or resulting corporation with the ordinary voting power to elect a majority of the board of directors of the surviving or resulting corporation, (iii) a 11 Bale of all, or substantially all, of Holding's assets or capital stock in any transaction or series of related transactions, or (iv) any sale of more than 70% of the shares of Stock originally issued to GTC pursuant to the Stock Purchase Agreement dated the date hereof between the Company and GTC in any single transaction or series of related transactions. 18. Confidential Information. Consultant acknowledges that the ------------------------ information, observations and data obtained by him during the course of the Consulting Period concerning the business or affairs of Holding and its affiliates are the property of Holding. Therefore, Consultant agrees that he will not disclose to any unauthorized person or use for his own account any of such information, observations or data without the Board's written consent, unless and to the extent that the aforementioned matters become generally known to and available for use by the public other than as a result of the Consultant's acts or omissions to act. 19. Notices. Any notice provided for in this Agreement must be in ------- writing and must be personally delivered, mailed by first class mail, or sent by overnight delivery service, to the recipient at the address indicated below: To Holding: Intercole Holding Corporation c/o Golder, Thoma & Cressey 120 S. LaSalle Street - Suite 630 Chicago, IL 60603 Attn. Bryan C. Cressey With copies to: Kirkland & Ellis 655 Fifteenth Street, N.W. Washington, D.C. 20005 Attn. Brian J. Richmand To Consultant: Glenn Kalnasy 6216 East Mercer Way Mercer Island, WA 98040 or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party. Any notice under this Agreement will be deemed to have been given when so delivered or mailed. 20. Definitions. ----------- The "Original Cost" of each share of Consultant Stock will be equal to $.727 for each share of Stock (as proportionally adjusted for all stock splits, stock dividends and other recapitalizations affecting the Stock subsequent to the date hereof). 12 "Subsidiary" means any corporation of which shares of stock having a majority of the general voting power in electing the board of directors are, at the time as of which any determination is being made, owned by Holding either directly or through its Subsidiaries. 21. Severability. Whenever possible, each provision of this ------------ Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. 22. Complete Agreement. This Agreement, those documents expressly ------------------ referred to herein and other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. 23. Counterparts. This Agreement may be executed on separate ------------ counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement. 24. Successors and Assigns. This Agreement is intended to bind and ---------------------- inure to the benefit of and be enforceable by the Consultant and Holding and their respective successor and assigns, except that the Consultant may not assign any of his rights or obligations under paragraph 18. 25. Choice of Law. The corporate law of the State of Delaware will ------------- govern all issues concerning the relative rights of Holding and its shareholders. All other questions concerning the construction, validity and interpretation of this Agreement and the exhibits and schedules hereto will be governed by the internal law, and not the law of conflicts of the State of Illinois. 26. Remedies. Each of the parties to this Agreement will be -------- entitled to enforce his or its rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in his or its favor. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in his or its sole discretion apply to any court of law or 13 equity of competent jurisdiction for specific performance and/or injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement. 27. Amendments and Waivers. Any provision of this Agreement may be ---------------------- amended or waived only with the prior written consent of Holding and the Consultant; provided that no amendment or waiver of paragraph 12 or 13 hereof shall be effective without the prior written consent of the Investor. 28. No Employment Terms. No provision of this Agreement shall be ------------------- construed to obligate Holding to employ or engage the Consultant. Holding may terminate the Consulting Period for any reason or no reason (including, without limitation, the Consultant's death, disability or termination with or without cause). * * * * 14 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above. INTERCOLE HOLDING CORPORATION By /s/Richard C. Tuttle --------------------------- Its -------------------------- INTERCOLE INC. By /s/Michael F.O. Harris --------------------------- Its -------------------------- /s/Glenn Kalnasy ----------------------------- Glenn Kalnasy Accepted as of July 13, 1988: GOLDER, THOMA, CRESSEY FUND II By Golder, Thoma & Cressey Its General Partner By /s/Bryan C. Cressey ---------------------------- Its General Partner --------------------------- THE PRUDENTIAL INSURANCE COMPANY OF AMERICA Prucapital Management, Inc., agent By /s/Kelvin Pennington ----------------------------------- Its Vice President, Corporate Finance ---------------------------------- PRUCO LIFE INSURANCE COMPANY By /s/Man Walfield ----------------------------------- Its Assistant Vice President ---------------------------------- 15 EX-5.1 4 OPINION AND CONSENT OF KIRKLAND & ELLIS EXHIBIT 5.1 December 6, 1996 Cable Design Technologies Corporation Foster Plaza 7 661 Andersen Drive Pittsburgh, Pennsylvania 15220 Re: Shares of Common Stock, $.01 par value -------------------------------------- Ladies and Gentlemen: We are acting as counsel to Cable Design Technologies Corporation, a Delaware corporation (the "Company"), in connection with the preparation and filing with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), of a Registration Statement on Form S-8 (the "Registration Statement") pertaining to the registration of a proposed offering of up to 181,848 shares of the Company's Common Stock, $.01 par value per share (the "Common Stock") pursuant to the Consulting Agreement dated July 14, 1988, among Intercole Holding Corporation (subsequently renamed Cable Design Technologies Corporation), Intercole Inc. and Michael F.O. Harris and the Consulting Agreement dated July 14, 1988, among Intercole Holding Corporation (subsequently renamed Cable Design Technologies Corporation), Intercole Inc. and Glenn Kalnasy. We have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion, including the following: (i) Amended and Restated Certificate of Incorporation and the Bylaws of the Company, each as amended to the date hereof; and (ii) certain resolutions adopted by the Board of Directors of the Company. In addition, we have made such other and further investigations as we have deemed necessary to enable us to express the opinions hereinafter set forth. Based upon the foregoing and having regard to legal considerations that we deem relevant, and subject to the comments and qualifications set forth below, it is our opinion that the Common Stock has been duly authorized. For purposes of this opinion, we have with your permission made the following assumptions, in each case without independent verification: (i) the authenticity of all documents submitted to us as originals, (ii) the conformity to the originals of all documents submitted to us as copies, (iii) the authenticity of the originals of all documents submitted to us as copies, (iv) the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, (v) the authority of such persons signing all documents on behalf of the parties thereto and (vi) the due authorization, execution and delivery of all documents by the parties thereto. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations promulgated thereunder. We do not find it necessary for purposes of this opinion to cover, and accordingly we do not purport to cover herein, the application of the securities or "Blue Sky" laws of the various states to the offering and sale of the Common Stock. This opinion shall be limited to the laws of the State of Delaware. This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose. Very truly yours, KIRKLAND & ELLIS 2 EX-23.1 5 CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated September 11, 1996, included in Cable Design Technologies Corporation's Form 10-K for the year ended July 31, 1996, and to all references to our Firm included in this registration statement. ARTHUR ANDERSEN LLP Pittsburgh, Pennsylvania, December 6, 1996 -----END PRIVACY-ENHANCED MESSAGE-----