Exhibit 10.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT dated as of October 21, 1998,
among the individuals and entities named in Schedule I hereto
(the "Investors"), XXXXXX X. XXXXXX and SUPERIOR TELECOM INC., a
Delaware corporation (the "Company").
WHEREAS the Company, SUT Acquisition Corp. ("Merger Sub") and Essex
International Inc., a Delaware corporation ("Essex"), have entered into an
Agreement and Plan of Merger dated as of October 21, 1998 (the "Merger
Agreement"), pursuant to which Merger Sub will be merged with and into Essex
(the "Merger");
WHEREAS in connection with the Merger the Company will issue Series A
Convertible Exchangeable Preferred Stock, par value $.01 per share (the
"Preferred Stock"), to the Investors and Xxxxxx and has agreed to provide
certain registration rights;
WHEREAS in accordance with the Certificate of Designation governing
the Preferred Stock, the Preferred Stock shall be exchangeable into 8-1/2%
Subordinated Convertible Exchange Debentures due 2013 (the "Exchange
Debentures");
WHEREAS the parties hereto desire to set forth the terms and
conditions relating to the sale by means of public offerings of Preferred Stock
owned by the Investors, Xxxxxx and their respective affiliates and transferees.
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
shall have the following meanings:
"Business Development Determination" has the meaning set forth in
Section 6 hereof.
"Demand Registration" has the meaning set forth in Section 4 hereof.
"Demand Registration Period" has the meaning set forth in Section 4
hereof.
"Effective Time" shall have the meaning ascribed to such term in the
Merger Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Form S-3" means a registration statement on Form S-3 under the
Securities Act or any successor form or any similar form that permits
incorporation by reference of reports filed by the Company under the Exchange
Act.
"Losses" has the meaning set forth in Section 8(d) hereof.
"Managing Underwriters" means the Underwriter or Underwriters that
manage or lead an underwritten offering.
"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.
"Registrable Securities" means all Securities held by the Investors or
Xxxxxx and their respective affiliates and transferees. As to any particular
Registrable Securities, such Securities will cease to be Registrable Securities
when they have been effectively registered under the Securities Act and disposed
of in accordance with any Registration Statement covering them.
"Registration Statement" means any registration statement filed by the
Company 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.
"SEC" means the Securities and Exchange Commission.
"Securities" means the shares of Preferred Stock received by the
Investors and Xxxxxx in connection with the Merger or any other shares of
capital stock issuable upon conversion of such Preferred Stock as well any other
shares
2
of capital stock or other securities, including, without limitation,
Exchange Debentures, into which any such securities are reclassified or changed,
including by reason of a merger, consolidation, reorganization or
recapitalization.
"Securities Act" means the Securities Act of 1933.
"Selling Party" has the meaning set forth in Section 8(b) hereof.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Period" has the meaning set forth in Section 2(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
filed by the Company 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 the Company
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) The Company shall prepare and, not
later than 10 days after the Effective Time, shall file with the SEC, and
thereafter shall use its best efforts to cause to be declared effective under
the Securities Act as soon as practicable, a Shelf Registration Statement
relating to the offer and sale by the Investors or Xxxxxx of all Registrable
Securities in a manner elected by the Investors or Xxxxxx 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 the Investors and Xxxxxx.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective during the period (the "Shelf
Registration Period") from the date a Registration Statement is declared
effective by the
3
SEC until 30 days following the first anniversary of the Effective Time.
(c) Without limiting the foregoing, the Company shall be deemed not to
have used its best efforts to keep the Shelf Registration Statement effective
during the Shelf Registration Period if the Company voluntarily takes any action
or fails to take any action that would result in (i) the Investors or Xxxxxx not
being able to offer and sell Registrable Securities thereunder, (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 6 hereof.
(d) Subject to Section 6 hereof, if the Shelf Registration Statement
ceases to be effective for any reason at any time during the Shelf Registration
Period, the Company shall use its best efforts to obtain the prompt withdrawal
of any order suspending the effectiveness thereof, and shall (i) within five
days after 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, the Company shall use its best efforts to
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 Shelf Registration Period. As
used herein, the term "Shelf Registration Statement" means any initial Shelf
Registration Statement and any additional Shelf Registration Statement filed as
contemplated by this Section 2.
(e) Subject to Section 6 hereof, the Company shall supplement and
amend as promptly as practicable 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 the Company with the SEC pursuant to the Exchange
4
Act), (ii) otherwise required by or advisable under the Securities Act or (iii)
requested by the Investors, Xxxxxx or the Managing Underwriters with respect to
an underwritten offering of such Registrable Securities.
(f) If during the Shelf Registration Period any Registrable Securities
have not been included in a Shelf Registration Statement, the Company shall upon
the request of any Investor or Xxxxxx 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.
(g) If at any time or from time to time the Investors or Xxxxxx desire
to sell Registrable Securities in an underwritten offering pursuant to the Shelf
Registration Statement, the Underwriters, including the Managing Underwriter,
shall be selected by the Investors or Xxxxxx, as the case may be, subject to the
consent of the Company which may not be unreasonably withheld.
SECTION 3. Piggyback Registrations. If the Company at any time after
the Shelf Registration Period and prior to the expiration of the second
anniversary of the Effective Time proposes to register securities under the
Securities Act (other than pursuant to a registration statement on Form S-4 or
S-8 or the equivalent thereof or pursuant to Section 2 hereof) involving any of
its equity securities (or any security with respect to which equity securities
may be issuable upon exercise, conversion or exchange of any options, rights
thereto or thereunder) to be offered for cash or cash equivalents in an
underwritten public offering, the Company shall each such time give prompt
written notice to the Investors and Xxxxxx of the Company's intention to do so,
describing such securities and specifying the form and manner and the other
relevant facts involved in such proposed registration (including, without
limitation, the identity of the Managing Underwriter and whether such offering
will be pursuant to a "best efforts" or "firm commitment" underwriting). Upon
the written request of the Investors or Xxxxxx delivered to the Company within
15 days after such notice shall have been given to the Investors and Xxxxxx
(which request shall specify the Registrable Securities intended to be disposed
of by the Investors or Xxxxxx and the intended method of disposition thereof),
the Company shall effect the registration (a "Piggyback Registration") under the
Securities Act, as expeditiously as is reasonable, of the sale of all
Registrable Securities that the Company has been so requested to register by the
Investors or Xxxxxx and include
5
all such Registrable Securities in such offering (by means of a combined
Prospectus if the offering of such Registrable Securities is covered by another
Registration Statement declared effective in accordance with Section 2 hereof)
(in accordance with the intended methods of distribution thereof as aforesaid);
provided, however, that:
(i) if, at any time after giving such written notice of its intention
to register any offering of such securities and prior to the effective date
of the Registration Statement filed in connection with such Piggyback
Registration, the Company shall determine for any reason not to register or
to delay the registration of such offering of securities, the Company may,
at its election, give written notice of such determination to the Investors
or Xxxxxx in connection with such Piggyback Registration thereby relieving
the Company of its obligation to register such securities in such offering
(but the Company shall not thereby be relieved from its obligation to pay
the registration expenses in connection therewith to the extent provided in
Section 7 hereof);
(ii) if the Managing Underwriter of such proposed Piggyback
Registration offering shall advise the Company in writing that, in the
judgment of such Managing Underwriter, the inclusion in any Registration
Statement pursuant to this Section 3 of some or all of the Registrable
Securities creates a substantial risk that the proceeds or price per unit
the Company or persons other than the Company will derive from such
registration will be materially reduced and/or that the number of
securities included in the offering to be registered (including those
sought to be included at the insistence of the Company and any other party
entitled to participate in such offering) is too large a number to be
reasonably sold, or the Managing Underwriter of such underwritten offering
shall inform the Company in writing of its opinion that the securities
requested to be included in such offering would materially adversely affect
its ability to effect such offering, the Company shall register an offering
of, and shall subsequently offer, that number of securities that the
Company is so advised can be sold in such offering, which shall be
allocated in the following priority: (A) first, the securities the Company
proposes to sell, (B) second, the securities proposed to be sold by any
person exercising demand registration rights and (C) third, the Registrable
Securities requested to be included in such offering and the securities
proposed to be sold by any other
6
holder allocated ratably among such holders on the basis of the securities
proposed to be sold; and
(iii) if the Managing Underwriter of such proposed Piggyback
Registration offering shall advise the Company in writing that, in the
judgment of such Managing Underwriter, the inclusion of any Registrable
Securities in such offering of a type, class or series, as the case may be,
different from that of the securities originally intended to be included in
such offering would materially adversely affect the success of the offering
of such securities originally intended to be so included, then the Company
shall promptly advise the Investors or Xxxxxx thereof and may require, by
written notice to the Investors or Xxxxxx accompanying such advice, that
such different Registrable Securities be excluded from such offering to the
extent the inclusion thereof could adversely affect such offering.
SECTION 4. Demand Registration Right. If the Company is not permitted
under applicable law from time to time in effect to maintain an effective Shelf
Registration Statement during the Shelf Registration Period or if, during the
one-year period terminating on the second anniversary of the Effective Time, the
Company does not meet the requirements of Rule 144(c) under the Securities Act,
each of the Investors or Xxxxxx may make a written request to the Company for
registration with the SEC under and in accordance with the provisions of the
Securities Act of all or part of their Registrable Securities and the Company
shall use its best efforts to effect such registration (a "Demand
Registration"); provided, however, that (i) the Company need effect, and the
Investors and Xxxxxx each are entitled to, only one such Demand Registration
during the period (the "Demand Registration Period") between the first and
second anniversary of the Effective Time, and (ii) no Demand Registration may be
requested after the end of the Demand Registration Period. No securities other
than Registrable Securities shall be included in any such Demand Registration
offering without the consent of the Investors and Xxxxxx.
SECTION 5. Registration Procedures. In connection with any
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to Xxxxxx and the Investors (if they are
then holding Registrable Securities) and their respective counsel prior to the
filing thereof with the SEC, a copy of any such Registration Statement
(including any preliminary prospectus contained therein),
7
and each amendment thereto and each amendment or supplement, if any, to the
Prospectus included therein and shall reflect in each such document, when so
filed with the SEC, such comments as the Investors reasonably may propose.
(b) The Company 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 6 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 the Company by or on
behalf of the Investors or Xxxxxx specifically for inclusion therein.
(c) The Company shall promptly advise Xxxxxx and the Investors (if
they are then holding Registrable Securities) and, if requested by the Investors
or Xxxxxx, 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;
(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 the Company 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
8
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 to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading.
(d) The Company 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) The Company shall furnish to Xxxxxx and the Investors (if they are
then owning Registrable Securities) and their respective counsel, without
charge, 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) The Company shall furnish Xxxxxx and the Investors (if they are
then owning Registrable Securities) and their respective 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 the Company's securities.
(g) The Company shall, during the Shelf Registration Period or the
Demand Registration Period, as the case may be, deliver to Xxxxxx and the
Investors (if they are then owning Registrable Securities), without charge, 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 6 below, the Company
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, the Company shall use its best efforts to register or
qualify or cooperate with the Investors or Xxxxxx and their respective counsel
in connection with the registration or qualification
9
of such Registrable Securities for offer and sale under the securities, Blue Sky
or similar laws of such U.S. jurisdictions as the Investors or Xxxxxx request,
and the Company 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 U.S.
jurisdictions of the Registrable Securities covered by such Registration
Statement; provided, however, that the Company 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 which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Investors or Xxxxxx 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 6 hereof, at any time and from time to time
upon the occurrence of any event contemplated by Section 5(c)(v) hereof, the
Company 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 or 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 to make the statement therein (in the case of the Prospectus, in
the light of the circumstances under which they were made) not misleading.
(k) The Company shall comply with all applicable rules and regulations
of the SEC and shall make generally available to the Investors and Xxxxxx 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) Each holder of Registrable Securities that plans to participate in
a distribution pursuant to a Registration Statement shall furnish to the Company
such information regarding such Person and its affiliates and the distribution
of such Registrable Securities as the Company may from time to time reasonably
require for inclusion in such Registration Statement. 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 the
Investors and Xxxxxx
10
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. The Investors or Xxxxxx
shall advise the Company and, if requested by the Company, confirm such advice
in writing in the event that the Investors or Xxxxxx become 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 the Investors or Xxxxxx specifically for inclusion therein are not misleading
and do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading.
(m) Subject to Section 6 hereof, the Company 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, the Investors, Xxxxxx and the Company 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 the Company shall print
and deliver copies of such amended Prospectus or Prospectus supplement to all
purchasers of such Registrable Securities.
(n) If requested by the Investors or Xxxxxx in connection with the
offering and sale of Registrable Securities pursuant to a Registration
Statement, the Company 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.
(o) The Company shall: (i) make reasonably available for inspection
during normal business hours by the Investors, Xxxxxx, any Underwriter
participating in any disposition pursuant to a Registration Statement, and any
attorney, accountant or other agent or representative retained by the Investors,
Xxxxxx or any such Underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries; (ii) cause the Company's officers, directors
11
and employees to supply all relevant information reasonably requested by the
Investors, Xxxxxx 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 the Company, as confidential at the
time of delivery of such information shall be kept confidential by the
Investors, Xxxxxx 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 the
Company 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 the Company
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company 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; (vi) deliver such
documents and certificates as may be reasonably requested by the Investors,
Xxxxxx and the Managing Underwriters, if any, including those to evidence
compliance with Section 5(i) hereof and with any customary condition contained
in the underwriting agreement or other agreement entered into by the Company;
and (vii) use its best efforts to make its senior management reasonably
available for customary "roadshow" or similar presentations to and meetings with
potential investors. The foregoing action set forth in clauses (iii), (iv), (v)
and (vi) of this Section 5(o) shall be performed at (A) the effectiveness of
such Registration Statement and each post-effective
12
amendment thereto and (B) each closing under any underwriting or similar
agreement as and to the extent required thereunder.
(p) The Company 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 the Company are then listed or quoted.
SECTION 6. Suspension of Offerings in Certain Circumstances. The
Company shall be entitled for the period referred to below to postpone the
filing of any Registration Statement or the taking of any other action otherwise
required to be prepared, filed or taken by it pursuant to Sections 2, 3, 4 and 5
hereof and/or to direct the suspension of any public offering, sale or
distribution of Registrable Securities if the Board of Directors of the Company
determines in good faith that any disclosure that would be required in
connection therewith would have a material adverse effect on the Company or any
financing, acquisition, disposition, merger, business combination, corporate
reorganization, or other transaction or development involving the Company or any
subsidiary of the Company (a "Business Development Determination"). Such
postponement or direction shall continue until such time as the Board of
Directors of the Company determines that the preparation and/or filing of such
Registration Statement or the taking of any such action and/or such public
offering, sale or distribution would no longer have a material adverse effect on
the Company or any such transaction but shall not, in any event, exceed 30 days
for any particular Business Development Determination or 60 days for all
Business Development Determinations during any twelve month period. No Business
Development Determination shall occur within 180 days of the expiration of a
postponement or suspension caused by another Business Development Determination.
The Board shall, as promptly as practicable, give the Investors and Xxxxxx
written notice of any Business Development Determination.
SECTION 7. Registration Expenses. The Company shall bear all costs and
expenses incurred in connection with Sections 2, 3, 4 and 5 hereof, including
fees and disbursements of counsel and accountants for it and the holders of
Registrable Securities, printing, messenger and delivery expenses and all SEC,
National Association of Securities Dealers, Inc. and Blue Sky filing fees
(including those payable by any Underwriters); provided, however, that such
expenses shall exclude any brokerage fees or underwriting discounts and fees.
13
SECTION 8. Indemnification and Contribution. (a) Indemnification of
Holders of Registrable Securities. In the case of any offering or sale of
Registrable Securities covered by this Agreement, the Company shall indemnify
and hold harmless each of the holders of Registrable Securities and each person
affiliated with or retained by the holders of Registrable Securities 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 8(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 the respective holders of
Registrable Securities in connection with any offering or sale of Registrable
Securities), and shall, subject to Section 8(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 to make the statements therein not misleading;
provided, however, that the Company shall be liable in any case only 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 the Company by or on behalf of any such holders of
Registrable Securities specifically for inclusion therein, including any such
information furnished pursuant to Section 5(l) hereof.
(b) Indemnification of the Company. In the case of each offering or
sale of Securities covered by this Agreement, each holder of Registrable
Securities that sells such Registrable Securities pursuant to a Registration
Statement ("Selling Party") shall indemnify and hold harmless the Company and
each person, if any, who controls the Company within the meaning of Section 15
of the
14
Securities Act, each person affiliated with or retained by the Company
and who may be subject to liability under any applicable securities laws, and
each of the Company's directors and those officers of the Company 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 8(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 the
respective holders of Registrable Securities in connection with any offering or
sale of Registrable Securities), and shall, subject to Section 8(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 to make
the statements therein not misleading; provided, however, that such holders of
Registrable Securities shall be liable in any case only to the extent that such
loss, claim, damage, liability or action arises out of or is based upon written
information solely relating to such holders of Registrable Securities and their
affiliates furnished to the Company by or on behalf of such holders of
Registrable Securities 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 5(l) hereof.
(c) Procedure for Indemnification. Each party indemnified under
Section 8(a) or 8(b) hereof 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
15
action shall not relieve the indemnifying party from any liability in respect of
such action which it may have to such indemnified party on account of the
indemnity agreement contained in Section 8(a) or 8(b) hereof, 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 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) for all parties who may
be indemnified by such indemnifying party with respect to such action, unless in
the opinion of counsel 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 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
16
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 thereof.
(d) Contribution. In the event that the indemnity provided in Section
8(a) or 8(b) is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Selling Parties agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Selling
Parties may be subject in such proportion as is appropriate to reflect the
relative fault of the Company and the Selling Parties in connection with the
statements or omissions which resulted in such Losses and any other relevant
equitable considerations; provided, however, that in no case shall any Selling
Party be responsible for any amount in excess of the gain to such Selling Party
over the price paid for such Registrable Securities sold by such Selling Party.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission related to information provided by the Company or the
Selling Parties. The Company and the Selling Parties agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation that does not take account of the equitable
considerations referred above. Notwithstanding the provisions of this Section
8(d), no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls a Selling Party within the meaning of
either the Securities Act or the Exchange Act and each director, officer,
employee and agent of a Selling Party, and each person who controls the Company
within the meaning of either the Securities Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
Section 8(d).
SECTION 9. Miscellaneous. (a) No Inconsistent Agreements. The Company
has not as of the date hereof taken any actions in accordance with or entered
into and except as expressly permitted by Section 5 hereof the Company shall
17
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 the holders of Registrable Securities
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.
(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 the Company, the Investors or Xxxxxx. Notwithstanding
the previous sentence, any Investor may assign, in whole or in part, any of or
all its rights, interests, and obligations under this Agreement to any affiliate
of such Investor, or any stockholder of, partner in, or member of such Investor,
and such transferee shall be deemed an "Investor" hereunder for all purposes.
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 said State, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law.
(g) Consent to Jurisdiction. Each of the Company, the Investors and
Xxxxxx irrevocably submits to the exclusive jurisdiction of the United States
District Court
18
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 Company, the Investors and Xxxxxx 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) (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 Company, the Investors and Xxxxxx 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.
(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 addresses (or to any other address as any
party or assignee of a party may specify as its own by giving notice in
accordance herewith):
(a) if to the Company, to:
Superior TeleCom Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxx
19
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
(b) if to the Investors, to:
Bessemer Partners & Co.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxx
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.
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
20
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.
(j) Effectiveness. This Agreement shall become effective at the
Effective Time.
SECTION 10. Trust Preferred Securities. If the Company causes the
Preferred Stock to be substituted with trust preferred securities pursuant to
Section 2.06(g) of the Merger Agreement, the Company will cause the issuer of
such trust preferred securities to enter in a registration rights agreement with
the Investors and Xxxxxx having terms substantially equivalent to this
Agreement.
21
IN WITNESS WHEREOF, the Investors and the Company by their duly
authorized representatives and Xxxxxx have caused this Agreement to be executed
as of the day and year first above written.
SUPERIOR TELECOM INC.,
by
/s/ X. Xxxxxx
---------------------------
Name: X. Xxxxxx
Title: Chmn. + CEO
BESSEMER HOLDINGS, L.P.,
by KYLIX HOLDINGS, L.L.C.,
General Partner,
by XXXXXXXX CORPORATION,
a principal manager,
by
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
BESSEC HOLDINGS, L.P.,
By KYLIX HOLDINGS, L.L.C.,
General Partner,
by XXXXXXXX CORPORATION,
a principal manager,
by
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
-----------------------------------
Xxxxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxx
IN WITNESS WHEREOF, the Investors and the Company by their duly
authorized representatives and Xxxxxx have caused this Agreement to be executed
as of the day and year first above written.
SUPERIOR TELECOM INC.,
by
---------------------------
Name:
Title:
BESSEMER HOLDINGS, L.P.,
by KYLIX HOLDINGS, L.L.C.,
General Partner,
by XXXXXXXX CORPORATION,
a principal manager,
by
/s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
BESSEC HOLDINGS, L.P.,
By KYLIX HOLDINGS, L.L.C.,
General Partner,
by XXXXXXXX CORPORATION,
a principal manager,
by /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx X. Xxxxx
THE XXXXX FOUNDATION,
by
/s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: President
XXXXX 1994 FAMILY PARTNERSHIP,
L.P.,
by NORTH HAILEY
CORPORATION,
General Partner,
by
/s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: President
NORTH HAILEY CORPORATION,
by
/s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: President
NEBRIS CORPORATION,
by
/s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: President
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
XXXXXXX 1994 FAMILY PARTNERSHIP,
L.P.,
by XXXXXXXX CORPORATION,
General Partner,
by
/s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
XXXXXXXX CORPORATION,
by
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
OLD HUNDRED CORPORATION,
by
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
CRAIGHALL CORPORATION,
by
/s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
SCHEDULE I
Bessemer Holdings, X.X.
Xxxxxx Holdings, X.X.
Xxxx X. Xxxxx
The Xxxxx Foundation
Xxxxx 1994 Family Partnership, L.P.
North Hailey Corporation
Nebris Corporation
Xxxxxx X. Xxxxxxx
Xxxxxxx 1994 Family Partnership, X.X.
Xxxxxxxx Corporation
Old Hundred Corporation
Craighall Corporation
