Exhibit 9.04
AMENDMENT NO. 1 dated as of July 3, 1996, to the MANAGEMENT
STOCKHOLDERS AND REGISTRATION RIGHTS AGREEMENT dated as of
October 9, 1992 (as amended hereby, and as further amended from
time to time, the "Management Stockholders Agreement"), among
BCP/ESSEX HOLDINGS INC. (as successor to B E ACQUISITION
CORPORATION), a Delaware corporation (the "Company"), the
MANAGEMENT PURCHASERS party thereto and BESSEMER HOLDINGS, L.P.
(as successor in interest to BESSEMER CAPITAL PARTNERS, L.P.), a
Delaware limited partnership.
WHEREAS the Company desires to sell to certain purchasers, and such
purchasers desire to purchase from Holdings, an aggregate of up to 13,000,000
shares of Common Stock of the Company ("Common Stock"); and
WHEREAS, in connection with the sale of such Common Stock, the
parties to the Management Stockholders Agreement wish to amend the Management
Stockholders Agreement upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, each term
used herein that is defined in the Management Stockholders Agreement shall
have the meaning assigned thereto in the Management Stockholders Agreement.
SECTION 2. AMENDMENT OF MANAGEMENT STOCKHOLDERS AGREEMENT. The
Management Stockholders Agreement is hereby amended as follows:
(a) The definition of "Registrable Securities" in Section 1.22 of
the Management Stockholders Agreement is amended by inserting the phrase "by
the Company" in place of the phrase "pursuant to the BCP Subscription
Agreement or the Management Subscription Agreements".
SECTION 3. AGREEMENT TO BE BOUND. Each of BCE Partners, L.P., BGE
Partners, L.P., BNE Partners, L.P., and
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BTE Partners, L.P. (the "New Investors"), upon its acquisition of Common
Stock, agrees to be bound by the provisions of the Management Stockholders
Agreement as a Shareholder and shall have all the rights and obligations of a
Shareholder to the same extent and in the same manner as the parties thereto
and as additionally provided in this Amendment. Each of the New Investors
currently is a member of the BCP Group.
SECTION 4. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York, regardless of
the law that might be applied under applicable principles of conflicts of law.
SECTION 5. COUNTERPARTS; EFFECTIVENESS. The Amendment may be
signed in any number of counterparts, each of which shall be an original and
all of which together shall constitute the same instrument, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 6. HEADINGS, ETC. The headings of the various sections of
this Amendment are for convenience of reference and shall not modify, define,
expand or limit any of the terms or provisions hereof.
SECTION 7. SEVERABILITY. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
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any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
BESSEMER HOLDINGS, L.P.,
by KYLIX HOLDINGS, L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
THE MANAGEMENT PURCHASERS WHO ARE
PARTIES TO THE MANAGEMENT
SUBSCRIPTION AGREEMENTS,
by BESSEMER HOLDINGS, L.P., as
attorney-in-fact,
by KYLIX HOLDINGS, L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
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BCE PARTNERS, L.P.,
by KYLIX HOLDINGS, L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
BGE PARTNERS, L.P.,
by KYLIX HOLDINGS, L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
BNE PARTNERS, L.P.,
by KYLIX HOLDINGS, L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
BTE PARTNERS, L.P.,
by /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
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BCP/ESSEX HOLDINGS INC.,
by /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
