Exhibit 10.4
REGISTRATION RIGHTS AGREEMENT, dated as of April [ ],
1997, among ESSEX INTERNATIONAL INC., a Delaware corporation
("ESI"), BESSEMER HOLDINGS, L.P., a Delaware limited
partnership ("BHLP"), BESSEC HOLDINGS, L.P., a Delaware
limited partnership, BESSEMER HOLDINGS SPECIAL SITUATIONS,
L.P., a Delaware limited partnership, BGE PARTNERS, L.P., a
Delaware limited partnership, BNE PARTNERS, L.P., a Delaware
limited partnership, BTE PARTNERS, L.P., a Cayman Islands
limited partnership and BCE PARTNERS, L.P., a Delaware limited
partnership.
WHEREAS ESI is in the process of offering certain of its shares of
common stock, par value $0.01 per share ("Common Stock") to the public in a
public offering (the "Offering"), as described in the Registration Statement on
Form S-1 filed with the Securities and Exchange Commission ("SEC") on February
19, 1997, as Registration No. 333-22043;
WHEREAS BHLP and certain of its affiliates will continue to own Common
Stock the sale of which is restricted under Federal securities laws; and
WHEREAS ESI has agreed to provide, or to cause certain other issuers
to provide, registration rights with respect to the Common Stock owned by BHLP
and certain of its affiliates, and any other securities issued to BHLP or
certain of its affiliates by ESI or an associated entity.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following
terms have the following meanings:
"AFFILIATE" of any Person means any Person that, directly or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with such Person. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise. For the purposes of this Agreement, (a)
each limited partner of each Initial Holder shall be considered an Affiliate of
BHLP and (b) neither ESI nor any person controlled by ESI shall be considered to
be an Affiliate of BHLP.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
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"FORM S-3" means Form S-3 under the Securities Act or any successor
form or any similar form that permits incorporation by reference of reports
filed by ESI under the Exchange Act.
"INITIAL HOLDER" means each of the parties hereto, other than ESI.
"INVESTOR SHAREHOLDERS AGREEMENT" means the Investors Shareholders
Agreement, dated as of October 9, 1992, among the Company and certain
shareholders named therein, as amended from time to time.
"MANAGING UNDERWRITERS" means the Underwriter or Underwriters that
manage or lead an underwritten offering.
"MANAGEMENT STOCKHOLDERS AGREEMENT" means the Management Stockholders
and Registration Rights Agreement, dated as of October 9, 1992, among the
Company and certain management purchasers named therein, as amended from time to
time.
"PERSON" means any individual, partnership, corporation, trust or
other entity.
"PROSPECTUS" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Securities Act), as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement,
and all amendments and supplements to the prospectus, including post-effective
amendments and including any documents incorporated by reference in any of the
above described documents.
"REGISTRABLE SECURITIES" means all Securities then beneficially owned
by BHLP and any of its Affiliates.
"REGISTRATION PERIOD" has the meaning set forth in Section 2(b)
hereof.
"REGISTRATION STATEMENT" means any registration statement filed by ESI
with the SEC under the Securities Act that covers some or all Registrable
Securities, and any amendments or supplements thereto, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all documents and other materials incorporated by reference
therein, including a Shelf Registration Statement.
"SECURITIES" means Common Stock as well as any other shares of capital
stock or other securities into which Common Stock or any Securities are
reclassified or changed, including by reason of a merger, consolidation,
reorganization or recapitalization or otherwise are distributed with respect to
Common Stock or any Securities.
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"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time.
"SHELF REGISTRATION" means a registration effected pursuant to
Section 2 hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
filed by ESI pursuant to the provisions of Section 2 hereof with the SEC
covering offers and sales in accordance with Rule 415 under the Securities Act,
or any similar rule that may be adopted by the SEC (whether or not ESI is then
eligible to use Form S-3), that covers some or all of the Registrable
Securities, and any amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"UNDERWRITER" means any underwriter of Registrable Securities in
connection with an offering thereof pursuant to a Registration Statement.
SECTION 2. SHELF REGISTRATION. (a) Upon written demand (a "Demand")
by BHLP, ESI shall prepare and, not later than 60 days after the date of such
demand, shall file with the SEC, and thereafter shall cause to be declared
effective under the Securities Act as soon as practicable, a Shelf Registration
Statement relating to the Registrable Securities in a manner elected by BHLP and
set forth in such Shelf Registration Statement. No securities other than
Registrable Securities shall be included in any such initial Shelf Registration
Statement or any additional Shelf Registration Statement with respect thereto
without the consent of BHLP; PROVIDED, HOWEVER, that securities held by parties
to the Management Stockholders Agreement (other than the Company) may be
included as a result of incidental or "piggyback" registration rights granted by
ESI to such parties but only if securities held by parties to the Investors
Shareholders Agreement (other than any Initial Holder) are included in the
initial Shelf Registration Statement or any additional Shelf Registration
Statement.
(b) Subject to Section 5 hereof, ESI shall use its best efforts to
keep the Shelf Registration Statement continuously effective during the period
(the "Registration Period") from the date a Registration Statement is declared
effective by the SEC until all Registrable Securities have been sold or can be
sold without restriction, including volume and manner of sale restrictions,
under the Securities Act; PROVIDED, HOWEVER, that ESI's obligation to keep the
Shelf Registration Statement continuously effective during the Registration
Period shall terminate 90 days after the date upon which the Initial Holders'
beneficial ownership of ESI common stock drops below 10% of the outstanding
shares of ESI common stock..
(c) Without limiting the foregoing, ESI shall be deemed not to have
used its best efforts to keep the Shelf Registration Statement effective during
the Registration Period if ESI voluntarily takes any action or fails to take any
action that would result in (i) BHLP or any of its Affiliates not being able to
offer and sell
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Registrable Securities under the Shelf Registration Statement, (ii) such Shelf
Registration Statement failing to comply as to form with the applicable
requirements of the Securities Act or (iii) any Prospectus forming a part of any
Shelf Registration Statement containing an untrue statement of a material fact
or omitting to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading unless,
in each case, (x) such action or failure to take action is required by
applicable law, rule, regulation, or legal proceeding or (y) such action or
failure to take action is permitted by Section 5 hereof.
(d) Subject to Section 5 hereof, if the Shelf Registration Statement
ceases to be effective for any reason at any time during the Registration
Period, ESI shall use its best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and shall (i) within 5 days of such
cessation of effectiveness, amend the Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or (ii) file an additional Shelf Registration Statement
subsequent to the expired or ineffective Shelf Registration Statement covering
the Registrable Securities. If any additional Shelf Registration Statement is
filed, ESI shall cause such Shelf Registration Statement to be declared
effective as soon as practicable after such filing and to keep such Shelf
Registration Statement continuously effective for the remainder of the
Registration Period. As used herein, the term "Shelf Registration Statement"
means any initial Shelf Registration Statement and any additional or subsequent
Shelf Registration Statement filed as contemplated by this Section.
(e) Subject to Section 5 hereof, ESI shall immediately supplement and
amend any Shelf Registration Statement if (i) required by the SEC or the rules,
regulations or instructions applicable to such Shelf Registration Statement
(including to cause all information in such Shelf Registration Statement to
conform in all respects to all information contained in reports filed by ESI
with the SEC pursuant to the Exchange Act), (ii) otherwise required by, or
advisable under, the Securities Act or (iii) reasonably requested by BHLP or by
the Managing Underwriters with respect to an underwritten offering of such
Registrable Securities.
(f) As soon as practicable after determining that any Registrable
Securities have not been included in a Shelf Registration Statement, ESI shall
file a subsequent Shelf Registration Statement covering all such unregistered
Registrable Securities that includes a combined Prospectus permitting the
inclusion in such Prospectus of all Registrable Securities, including
Registrable Securities included in a previously filed Registration Statement;
PROVIDED, HOWEVER, that no such subsequent Shelf Registration Statement need be
filed for Registrable Securities representing less than 10% of the then
outstanding Common Stock of ESI unless BHLP informs ESI that BHLP or any of its
Affiliates currently intends to sell such Registrable Securities.
(g) If at any time or from time to time BHLP or any of its Affiliates
desires to sell Registrable Securities in an underwritten offering pursuant to
the Shelf
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Registration Statement, the Underwriters, including the Managing Underwriter,
shall be selected by BHLP.
(h) If ESI is, at the time of any Demand, not permitted to file a
Shelf Registration Statement, or if at any time during the Registration Period
ESI is not permitted to maintain a Shelf Registration Statement, ESI shall use
its best efforts to, upon demand, provide BHLP and its Affiliates with
substantially identical registration rights to the fullest extent permitted by
law in a manner consistent with this Section and Sections 4 and 5 hereof.
SECTION 3. REGISTRATION RIGHTS IN OTHER AGREEMENTS. The registration
rights granted in this Agreement shall be in addition to any other registration
rights granted by ESI to the parties hereto (other than ESI) in any other
agreement.
SECTION 4. REGISTRATION PROCEDURES. In connection with any
Registration Statement the following provisions shall apply:
(a) ESI shall furnish to BHLP and its counsel prior to the filing
thereof with the SEC, a copy of any such Registration Statement (including any
preliminary prospectus contained therein), and each amendment thereto and each
amendment or supplement, if any, to the Prospectus included therein or document
to be incorporated by reference therein and shall reflect in each such document,
when so filed with the SEC, such reasonable comments as BHLP may propose.
(b) ESI shall ensure that (i) any such Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any amendment or
supplement thereto complies as to form in all material respects with the
Securities Act, (ii) any such Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) subject to Section 5
hereof, any Prospectus forming part of any such Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading other than, in clauses (ii) and (iii), any such untrue
statement or omission made therein in reliance upon and conformity with written
information furnished to ESI by or on behalf of BHLP or any of its Affiliates
specifically for inclusion therein.
(c) ESI shall promptly advise BHLP and, if requested by BHLP,
promptly confirm such advice in writing:
(i) when any such Registration Statement and any amendment or
supplement thereto has been filed with the SEC and when any such
Registration Statement or any post-effective amendment thereto has become
effective;
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(ii) of any request by the SEC for amendments or supplements to any
such Registration Statement or the Prospectus included therein or for
additional information;
(iii) of the issuance by the SEC of any stop order suspending the
effectiveness of any such Registration Statement or the initiation of any
actions or proceedings for that purpose;
(iv) of the receipt by ESI of any notification with respect to the
suspension of the qualification of the Registrable Securities included
therein for sale in any jurisdiction or the initiation or threatening of
any action or proceeding for such purpose; and
(v) of the happening of any event that requires the making of any
changes in any such Registration Statement or Prospectus so that, as of
such date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary (in the
case of the Prospectus, in light of the circumstances under which they were
made) to make the statements therein not misleading.
(d) ESI shall use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of any such Registration Statement at the
earliest possible time.
(e) ESI shall furnish to BHLP and its counsel, without charge, other
than incremental out-of-pocket costs, a copy of each Registration Statement and
any and all post-effective amendments thereto, including financial statements
and schedules, and all exhibits thereto (including those incorporated therein by
reference).
(f) ESI shall furnish BHLP and its counsel, without charge, copies of
any and all transmittal letters or other correspondence with the SEC or any
other governmental entity relating to a Registration Statement or the public
offering of ESI's securities.
(g) ESI shall, during the Registration Period, deliver to BHLP,
without charge, other than incremental out-of-pocket costs, as many copies of
the Prospectus (including each preliminary Prospectus) included in such
Registration Statement and any amendment or supplement thereto as such Person
may reasonably request; and subject to Section 5 hereof, ESI consents to the use
of the Prospectus or any amendment or supplement thereto by each such Person in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities pursuant to any
Registration Statement, ESI shall use its best efforts to register or qualify or
cooperate with BHLP and its counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities, Blue Sky or similar laws
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of such jurisdictions as BHLP requests, and ESI shall use its best efforts to do
any and all other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Registrable Securities covered by such
Registration Statement; PROVIDED, HOWEVER, that ESI shall not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action that would subject it to general service of
process or to taxation in any such jurisdiction where it is not then so subject.
(i) ESI shall cooperate with BHLP and its Affiliates to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
requested prior to such sales.
(j) Subject to Section 5 hereof, at any time and from time to time
upon the occurrence of any event contemplated by paragraph (c)(v) above, ESI
shall promptly prepare and file with the SEC, a post-effective amendment to any
Registration Statement or an amendment or supplement to the related Prospectus
and file any other required document so that, as thereafter delivered to
purchasers of the Registrable Securities offered thereby, the Prospectus will
not include an untrue statement of a material fact or omit to state any material
fact necessary (in the case of the Prospectus, in the light of the circumstances
under which they were made) to make the statement therein not misleading.
(k) ESI shall comply with all applicable rules and regulations of the
SEC and shall make generally available to BHLP as soon as practicable after the
effective date of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
under the Securities Act.
(l) BHLP and its Affiliates shall furnish to ESI such information
regarding their proposed distribution of Registrable Securities as ESI may from
time to time reasonably require for inclusion in any Registration Statement
covering the sale of Registrable Securities. Such information at the time any
Registration Statement and any amendment thereto becomes effective, and at the
time any Prospectus or supplement thereto previously reviewed by BHLP forming a
part of any Registration Statement is delivered in any offering of Registrable
Securities, shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary (in the case of
the Prospectus, in light of the circumstances which the were made) to make the
statements therein not misleading. BHLP shall advise ESI and, if requested by
ESI, confirm such advice in writing in the event that BHLP becomes aware of the
happening of any event that requires the making of any changes in a Registration
Statement or Prospectus so that as of such dates the statements therein provided
by BHLP and its Affiliates specifically for inclusion therein are not misleading
and do not omit to state a material fact required to be stated therein or
necessary (in the case of the Prospectus, in light of the circumstances under
which they were made) to make the statements therein not misleading.
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(m) Subject to Section 5 hereof, ESI shall, upon request, promptly
incorporate in a Prospectus or Prospectus supplement or post-effective amendment
to a Registration Statement, such information, if any, as the Managing
Underwriters, BHLP and ESI reasonably agree should be included therein and shall
make all required filings of such Prospectus or Prospectus supplement or
post-effective amendment as soon as practicable following notification of the
matters to be incorporated in such Prospectus or Prospectus supplement or
post-effective amendment, and ESI shall print and deliver copies of such amended
Prospectus or Prospectus supplement to all purchasers of such Registrable
Securities.
(n) If requested by BHLP in connection with the offering and sale of
Registrable Securities pursuant to a Registration Statement, ESI shall enter
into one or more underwriting agreements with the Managing Underwriters selected
in accordance with Section 2(g) hereof. Any such underwriting agreement shall
contain such indemnities and other agreements as are then customarily included
in underwriting agreements relating to secondary public offerings; PROVIDED,
HOWEVER, that in no event shall the indemnification provisions and procedures in
such underwriting agreements be less favorable to the Managing Underwriters than
those contained in Section 7 hereof.
(o) ESI shall: (i) make reasonably available for inspection during
normal business hours by BHLP, any Underwriter participating in any disposition
pursuant to a Registration Statement, and any attorney, accountant or other
agent or representative retained by BHLP or any such Underwriter all relevant
financial and other records, pertinent corporate documents and properties of ESI
and its subsidiaries; (ii) cause ESI's officers, directors and employees to
supply all relevant information reasonably requested by BHLP or any such
Underwriter, attorney, accountant, agent or representative in connection with
any such Registration Statement as is customary for similar due diligence
examinations; PROVIDED, HOWEVER, that any information that is designated in
writing by ESI as confidential at the time of delivery of such information shall
be kept confidential by BHLP or any such Underwriter, attorney, accountant,
agent or representative, unless (x) disclosure is, in the opinion of counsel to
the disclosing party, required to be made in connection with a court proceeding
or required by law or (y) such information becomes available to the public
generally or through a third party without an accompanying obligation of
confidentiality; (iii) make such representations and warranties to the holders
of Registrable Securities registered thereunder and the Underwriters, if any, in
form, substance and scope as are customarily made by issuers to Underwriters in
secondary public underwritten offerings; (iv) obtain opinions of counsel to ESI
and updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any) addressed
to each selling holder of Registrable Securities and the Underwriters, if any,
covering such matters as are customarily covered in opinions requested in
underwritten secondary public offerings by an affiliate and such other matters
as may be reasonably requested by such holders of Registrable Securities and
Underwriters; (v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of ESI (and, if necessary, any other
independent certified public accountants of any
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subsidiary of ESI or of any business acquired by ESI for which financial
statements and financial data are, or are required to be, included in a
Registration Statement), addressed to each holder of Registrable Securities and
the Underwriters, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
secondary public offerings by an affiliate; and (vi) deliver such documents and
certificates as may be reasonably requested by BHLP and the Managing
Underwriters, if any, including those to evidence compliance with Section 4(i)
hereof and with any customary condition contained in the underwriting agreement
or other agreement entered into by ESI. The foregoing action set forth in
clauses (iii), (iv), (v) and (vi) of this Section 4(o) shall be performed at
(A) the effectiveness of such Registration Statement and each post-effective
amendment thereto and (B) each closing under any underwriting or similar
agreement as and to the extent required thereunder. The foregoing action set
forth in clauses (ii), (iv) and (v) of this Section 4(o) shall also be performed
at least annually if requested by BHLP or as reasonably requested in light of
the need for amendments and supplements to Registration Statements.
(p) ESI shall cause all Registrable Securities to be listed on each
securities exchange or quoted through each automated interdealer quotation
system on which similar securities of ESI are then listed or quoted.
SECTION 5. SUSPENSION OF OFFERINGS IN CERTAIN CIRCUMSTANCES. ESI
shall be entitled for the period referred to below to postpone the filing of
any Registration Statement or the taking of any other action (including those
actions required by Section 2 or 4(m) hereof) otherwise required to be
prepared, filed or taken by it pursuant to Sections 2 and 4 hereof or to direct
the suspension of any public offering, sale or distribution of Registrable
Securities if the Board of Directors of ESI (the "Board") determines in good
faith that any disclosure that would be required in connection therewith would
have a material adverse effect on ESI or any financing, acquisition,
disposition, merger, business combination, corporate reorganization, or other
transaction or development involving ESI or any subsidiary of ESI (a "Business
Development Determination"). Such postponement or direction shall continue
until such time as the Board determines that the preparation or filing of such
Registration Statement or the taking of any such action or such public
offering, sale or distribution would no longer have a material adverse effect
on ESI or any such transaction but shall not, in any event, exceed 30 days for
any particular Business Development Determination or 90 days for all Business
Development Determinations during any twelve month period. No Business
Development Determination shall occur within 90 days of the expiration of a
postponement or suspension caused by another Business Development
Determination. The Board shall, as promptly as practicable, give BHLP written
notice of any Business Development Determination.
SECTION 6. REGISTRATION EXPENSES. ESI shall bear all out-of-pocket
costs and expenses incurred in connection with Sections 2 and 4 hereof,
including fees and disbursement of counsel and accountants for it and the
holders of Registrable Securities, printing, messenger and delivery expenses and
all SEC, NASD and Blue
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Sky filing fees (including those payable by any Underwriters); PROVIDED HOWEVER,
that such expenses shall exclude any brokerage fees or underwriting discounts
and fees.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION. (a) INDEMNIFICATION OF
THE PARTIES (OTHER THAN ESI). In the case of any offering or sale of
Registrable Securities covered by this Agreement, ESI shall indemnify and hold
harmless BHLP and its Affiliates and each person affiliated with or retained by
any of them and who may be subject to liability under any applicable securities
laws, against any and all losses, claims, damages or liabilities to which they
or any of them may become subject under the Securities Act or any other statute
or common law of the United States of America or political subdivision thereof,
or any other country or political subdivision thereof or otherwise, including,
subject to Section 7(c) hereof, any amount paid in settlement of any litigation
commenced or threatened (including any amounts paid pursuant to or in settlement
of claims made under customary indemnification or contribution provisions of any
underwriting or similar agreement entered into by BHLP or its Affiliates in
connection with any offering or sale of Registrable Securities), and shall,
subject to Section 7(c) hereof, promptly reimburse them, as and when incurred,
for any legal fees or disbursements or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
any such losses, claims, damages, liabilities or actions shall arise out of or
shall be based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or in any preliminary or
final Prospectus included therein) or other offering document relating to the
offering and sale of such Registrable Securities, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary (in the case of a Prospectus, in light of the circumstances in which
they were made) to make the statements therein not misleading; PROVIDED,
HOWEVER, that ESI will not be liable in any case to the extent that any such
loss, claim, damage, liability or action arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to ESI by or on behalf of BHLP or its Affiliates specifically for
inclusion therein, including any such information furnished pursuant to
Section 4(l) hereof.
(b) INDEMNIFICATION OF ESI. In the case of any offering or sale of
Securities covered by this Agreement, each holder of Registrable Securities that
sells such Registrable Securities pursuant to a Registration Statement shall
indemnify and hold harmless ESI and each person, if any, who controls ESI within
the meaning of Section 15 of the Securities Act, each person affiliated with or
retained by ESI and who may be subject to liability under any applicable
securities laws, and each of ESI's directors and those officers of ESI who shall
have signed any Registration Statement, offering memorandum or other offering
document, against any and all losses, claims, damages or liabilities to which
they or any of them may become subject under the Securities Act or any other
statute or common law of the United States of America or political subdivision
thereof, or any other country or political subdivision thereof or otherwise,
including, subject to Section 7(c) hereof, any amount paid in settlement of any
litigation commenced or threatened (including any
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amounts paid pursuant to or in settlement of claims made under customary
indemnification or contribution provisions of any underwriting or similar
agreement entered into by ESI in connection with any offering or sale of
Registrable Securities pursuant to this Agreement), and shall, subject to
Section 7(c) hereof, promptly reimburse them, as and when incurred, for any
legal fees or disbursements or other expenses incurred by them in connection
with investigating any claims and defending any actions, insofar as any such
losses, claims, damages, liabilities or actions shall arise out of or shall be
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or in any preliminary or final
Prospectus included therein) or other offering document relating to the offering
and sale of such Registrable Securities, or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary (in the
case of a Prospectus, in light of the circumstances in which they were made) to
make the statements therein not misleading; PROVIDED, HOWEVER, that BHLP and its
Affiliates shall not be liable in any case, except to the extent such loss,
claim, damage, liability or action arises out of or is based upon written
information solely relating to BHLP or its Affiliates furnished to ESI by or on
behalf of BHLP or its Affiliates specifically for inclusion in any Registration
Statement, any preliminary Prospectus or Prospectus contained in such
Registration Statement, any offering memorandum or other offering document, or
any amendment thereof or supplement thereto, including any such information
furnished pursuant to Section 4(l) hereof.
(c) PROCEDURE FOR INDEMNIFICATION. Each party indemnified under
paragraph (a) or (b) of this Section 7, shall, promptly after receipt of notice
of the commencement of any action against such indemnified party in respect of
which indemnity may be sought, notify the indemnifying party in writing of the
commencement thereof. The omission of any indemnified party so to notify an
indemnifying party of such action shall not relieve the indemnifying party from
any liability in respect of such action that it may have to such indemnified
party on account of the indemnity agreement contained in paragraph (a) or (b) of
this Section 7, except to the extent that the indemnifying party was or is
actually prejudiced thereby, and in no event shall relieve the indemnifying
party from any other liability that it may have to such indemnified party to the
extent the indemnifying party has not actually been prejudiced thereby. In case
any such action shall be brought against any indemnified party and such
indemnified party shall notify an indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party. If the indemnifying party so assumes the defense
thereof, it may not agree to any settlement of any such action as the result of
which any remedy or relief, other than monetary damages for which the
indemnifying party shall be responsible hereunder, shall be applied to or
against the indemnified party, without the prior written consent of the
indemnified party. An indemnifying party may not assume or jointly assume the
defense of an action if in the reasonable judgment of the indemnified party a
conflict of interest may exist between the indemnifying party and such
indemnified party with respect to such action. An indemnifying party who is not
entitled to, who elects not to, or who has
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not appointed counsel reasonably satisfactory to the indemnified party within a
reasonable time to, assume the defense of an action shall be obligated to pay
the fees and expenses of counsel for the indemnified party; PROVIDED, HOWEVER,
that the indemnifying party shall not be obligated to pay the fees and the
expenses of more than one counsel (plus local counsel if necessary) for all
parties who may be indemnified by such indemnifying party with respect to such
action, unless in the reasonable judgment of any indemnified party a conflict of
interest exists between such indemnified party and any other indemnified party
with respect to such action. If the indemnifying party does not assume the
defense of an action, it shall be bound by any settlement to which the
indemnified party agrees, irrespective of whether the indemnifying party
consents thereto; PROVIDED, HOWEVER, that if the indemnifying party does not
assume the defense of an action because of a conflict of interest that prevented
it from doing so, then the indemnifying party shall be bound by any settlement
to which the indemnified party agrees and to which the indemnifying party
consents (which consent shall not be unreasonably withheld). If any settlement
of any claim is effected by the indemnified party prior to commencement of any
action relating thereto, the indemnifying party shall be bound thereby only if
it has consented in writing thereto. In any action with respect to which the
indemnifying party has assumed the defense thereof, the indemnified party shall
continue to be entitled to participate in the defense thereof, with counsel of
its own choice; PROVIDED, HOWEVER, that the indemnifying party shall be relieved
of the obligation hereunder to reimburse the indemnified party for the costs of
such counsel.
SECTION 8. RECAPITALIZATIONS; SPIN-OFFS AND SIMILAR TRANSACTION. If
ESI distributes, or any subsidiary or affiliate of ESI distributes, to BHLP or
any of its Affiliates, any capital stock or other securities of an issuer other
than ESI, ESI shall, or shall cause the issuer of such securities to, grant to
BHLP and its Affiliates, registration rights with respect to such capital stock
or other securities substantially the same as the registration rights granted
pursuant to this Agreement with respect to the Registrable Securities.
SECTION 9. MISCELLANEOUS. (a) NO INCONSISTENT AGREEMENTS. ESI has
not as of the date hereof taken any actions in accordance with or entered into
and except as expressly permitted by Section 4 hereof ESI shall not from the
date hereof until the expiration of the Registration Period take any actions in
accordance with or enter into, any agreement or arrangement with respect to any
class of its securities that limits or interferes with or is inconsistent with
the rights granted to BHLP and its Affiliates herein or otherwise conflicts with
the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may be amended, qualified, modified
or supplemented only by means of a written instrument executed by the affected
party or parties (it being understood that any such amendment executed by BHLP
shall bind all holders of Registrable Securities and no holders of Registrable
Securities other than BHLP may execute any such instrument without BHLP's
consent).
13
(c) ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned or transferred,
in whole or in part, by any of the parties hereto, except that BHLP or any of
its Affiliates may assign, in whole or in part, any or all its rights,
interests, and obligations under this Agreement to any Affiliate of BHLP, and
such Affiliate may assign any or all its rights, interests and obligations under
this Agreement to another such Affiliate or to BHLP, but no such assignment
shall relieve any party hereto of any of its obligations under this Agreement.
Subject to the preceding sentence, this Agreement shall be binding upon, inure
to the benefit of, and be enforceable by, the parties and their respective
successors and assigns. Any attempted assignment or transfer in violation of
this Section 9(c) shall be void.
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which taken
together shall be considered one and the same agreement, it being understood
that the parties need not sign the same counterpart.
(e) INTERPRETATION. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. Whenever the words "included", "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words "without
limitation".
(f) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law.
(g) CONSENT TO JURISDICTION. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the United States District Court for
the Southern District of New York located in the borough of Manhattan in the
City of New York, or if such court does not have jurisdiction, the Supreme Court
of the State of New York, New York County, for the purposes of any suit, action
or other proceeding arising out of this Agreement or any transaction
contemplated hereby. Each of the parties hereto further agrees that service of
any process, summons, notice or document by U.S. registered mail to such party's
respective address set forth in Section 9(h) hereof (as it may be changed from
time to time) shall be effective service of process for any action, suit or
proceeding in New York with respect to any matters to which it has submitted to
jurisdiction as set forth above in the immediately preceding sentence. Each of
the parties hereto irrevocably and unconditionally waives any objective to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in (a) the United States District Court
for the Southern District of New York or (b) the Supreme Court of the State of
New York, New York County, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
14
(h) NOTICES. All notices, requests and other communications hereunder
shall be in writing (including fax) and shall be sent, delivered or mailed,
addressed, or faxed to the following address (or to such address as any party
may specify as its own by giving notice in accordance herewith):
(a) if to ESI, to:
Essex International Inc.
0000 Xxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
with a copy to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxx, Esq.
(b) if to any party hereto other than ESI, to such party c/o:
Bessemer Holdings, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxx, Esq.
15
Each such notice, request or other communication shall be given (i) by hand
delivery, (ii) by nationally recognized courier service or (iii) by fax, receipt
confirmed. Each such notice, request or communication shall be effective (A) if
delivered by hand or by nationally recognized courier service, when delivered at
the address specified in this Section 9(h) (or in accordance with the latest
unrevoked written direction from such party) and (B) if given by fax, when such
fax is transmitted to the fax number specified in this Section 9(h) (or in
accordance with the latest unrevoked written direction from such party), and the
appropriate confirmation is received.
(i) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized
representatives, have caused this Agreement to be executed as of the day and
year first above written.
ESSEX INTERNATIONAL INC.,
by
-------------------------------
Name:
Title:
BESSEMER HOLDINGS, L.P.,
by KYLIX HOLDINGS L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
16
BESSEC HOLDINGS, L.P.,
by KYLIX HOLDINGS L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
BESSEMER HOLDINGS SPECIAL SITUATIONS,
L.P.,
by KYLIX HOLDINGS L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by
---------------------------------
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
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
17
BNE PARTNERS, L.P.,
by KYLIX HOLDINGS L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
BTE PARTNERS, L.P.,
by
---------------------------------
Name: Xx Xxxxx
Title: Authorized Signatory
BCE PARTNERS, L.P.,
by KYLIX HOLDINGS L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
