Exhibit 99.1
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT dated as of
March 17, 1999, among the individuals and entities
named in Schedule I hereto (the "Investors"),
SUPERIOR TELECOM INC., a Delaware corporation (the
"Company"), and SUPERIOR TRUST I, a Delaware
statutory business trust (the "Trust").
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 Trust will issue
8-1/2% Trust Convertible Preferred Securities (the "Trust Preferred Securities")
to the Investors and has agreed to provide certain registration rights;
WHEREAS in accordance with the Amended and Restated
Declaration of Trust governing the Trust Preferred Securities, the Trust
Preferred Securities shall be exchangeable into the Company's 8-1/2% Convertible
Subordinated Debentures due 2014 (the "Subordinated
Debentures");
WHEREAS the parties hereto desire to set forth the terms and
conditions relating to the sale by means of public offerings of Trust Preferred
Securities owned by the Investors 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.
"FORM S-4" means the joint preliminary proxy statement and
registration statement on Form S-4 under the Securities Act, and any amendments
thereto, initially filed by the Company, the Trust and Essex on December 14,
1998.
"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 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 or the Trust or both, as the case may be, 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.
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"SEC" means the Securities and Exchange
Commission.
"SECURITIES" means the Trust Preferred Securities received by
the Investors in connection with the Merger or any shares of capital stock of
the Company issuable upon conversion of such Trust Preferred Securities as well
any other shares of capital stock or other securities, including Subordinated
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 or the Trust or both, as the case may be,
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 or the Trust 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 or the Trust or
both, as the case may be, 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 of all Registrable Securities in a manner elected by the Investors
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
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Shelf Registration Statement with respect thereto without the consent of the
Investors.
(b) The Company or the Trust, as the case may be, 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 SEC until 30 days following the first
anniversary of the Effective Time.
(c) Without limiting the foregoing, the Company or the Trust
or both, as the case may be, 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 or the Trust, as the case may be, voluntarily takes any
action or fails to take any action that would result in (i) the Investors 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 or the Trust or both, as the case may be, 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
or the Trust or both, as the case may be, shall use its or their 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
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and any additional Shelf Registration Statement filed as contemplated by this
Section 2.
(e) Subject to Section 6 hereof, the Company or the Trust or
both, as the case may be, 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 Act), (ii) otherwise required by
or advisable under the Securities Act or (iii) requested by the Investors 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
or the Trust or both, as the case may be, shall upon the request of any Investor
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 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, 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 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 the identity of the Managing
Underwriter and whether such
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offering will be pursuant to a "best efforts" or "firm commitment"
underwriting). Upon the written request of the Investors delivered to the
Company within 15 days after such notice shall have been given to the Investors
(which request shall specify the Registrable Securities intended to be disposed
of by the Investors and the intended method of disposition thereof), the Company
and the Trust or both, as the case may be, 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 and include 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 in connection with such Piggyback
Registration thereby relieving the Company or the Trust or both of its
or their obligations 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
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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 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 thereof
and may require, by written notice to the Investors 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 or the
Trust, as the case may be, 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 or the Trust does not meet
the requirements of Rule 144(c) under the Securities Act, each of the Investors
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 or the Trust or both, as the case
may be, shall use its or their best efforts to effect such registration (a
"Demand Registration"); PROVIDED, HOWEVER, that (i) the Company or the Trust, as
the case may be, need effect, and the Investors 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
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Securities shall be included in any such Demand Registration offering without
the consent of the Investors.
SECTION 5. REGISTRATION PROCEDURES. In connection with any
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to the Investors (if they are
then holding Registrable Securities) and their 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 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 specifically for inclusion therein.
(c) The Company shall promptly advise the Investors (if they
are then holding Registrable Securities) and, if requested by the Investors,
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;
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(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 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 the Investors (if they are
then owning Registrable Securities) and their 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 the Investors (if they are then
owning Registrable Securities) and their 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 or the Trust's securities, as applicable.
(g) The Company shall, during the Shelf Registration Period or
the Demand Registration Period, as the case may be, deliver to 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 or the Trust
or both, as the case may be, consents to the use of the Prospectus or any
amendment or supplement
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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 or the Trust or both, as the case may
be, shall use its or their best efforts to register or qualify or cooperate with
the Investors and their counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities, Blue Sky or similar laws of such U.S. jurisdictions as the Investors
request, and the Company or the Trust or both, as the case may be, shall use its
or their 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 or the Trust or both, as the case may be, 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 or the Trust, as the case may be, shall
cooperate with the Investors 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 or the Trust or both, as the case may be, 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 or the Trust or both, as the case may be,
shall comply with all applicable rules and regulations of the SEC, and the
Company shall make generally available to the Investors as soon as practicable
after the effective date of the applicable Registration Statement an
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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 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 shall advise the Company and, if requested by the
Company, confirm such advice in writing in the event that the Investors 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 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 or the Trust or
both, as the case may be, 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 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 in connection with the
offering and sale of Registrable Securities pursuant to a Registration
Statement, the Company or the Trust or both, as the case may be, shall enter
into one or more underwriting agreements with the Managing Underwriters
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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, any Underwriter
participating in any disposition pursuant to a Registration Statement, and any
attorney, accountant or other agent or representative retained by the Investors
or any such Underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries or the
Trust, as the case may be; (ii) cause the Company's officers, directors and
employees or the trustees of the Trust, as the case may be, to supply all
relevant information reasonably requested by the Investors 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 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 or the Trust or both, as the case may
be, 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
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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 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 or
the Trust or both, as the case may be; 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 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 or the Trust, as the
case may be, 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
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caused by another Business Development Determination. The Board shall, as
promptly as practicable, give the Investors 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.
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
14
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 OR THE TRUST. 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 or the Trust or both, as the case may be, and each person, if any, who
controls the Company or the Trust or either of them, as the case may be, within
the meaning of Section 15 of the Securities Act, each person affiliated with or
retained by the Company or the Trust or either of them, as the case may be, 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 or each of the
Trust's trustees or any of the foregoing, as the case may be, 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
15
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 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
16
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 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, the Trust 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, the Trust 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, the Trust 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
17
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 or the Trust or either of them, as the
case may be, 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 or each trustee of the Trust or any
of the foregoing, as the case may be, 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;
ENTIRE AGREEMENT. The Company or the Trust, as the case may be, 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 or the Trust, as the case
may be, 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 the holders of
Registrable Securities herein or otherwise conflicts with the provisions hereof.
This Agreement, together with Schedule I attached hereto, constitutes the entire
agreement and supersedes all prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof and, except as otherwise expressly provided herein, is not intended to
confer upon any other Person any rights or remedies hereunder.
(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 Trust or the Investors. 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
18
"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 Trust
and the Investors 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 Company, the Trust
and the Investors 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 Trust and the Investors
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
19
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 or the Trust, to:
Superior TeleCom Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxx
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.
20
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.
(j) EFFECTIVENESS. This Agreement shall become effective at
the Effective Time, other than Section 10, which shall be effective as of the
day and year first above written.
SECTION 10. FORM S-4. Following March 31, 1999, until the
Effective Time (if March 31, 1999, is not the Effective Time), at the written
request of the Investors, the Company and the Trust shall amend the Form S-4 in
accordance with the provisions of the Securities Act to permit the Form S-4 to
be used by the Investors for resales of all or part of their Registrable
Securities.
IN WITNESS WHEREOF, the Investors and the Company by their
duly authorized representatives have caused this Agreement to be executed as of
the day and year first above written.
SUPERIOR TELECOM INC.,
by /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Setwart X. Xxxxxxxxx
Title: Secretary
21
SUPERIOR TRUST I,
by /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Administrative Trustee
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/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
22
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
23
LINDSAY 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
24
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
