Exhibit 9.6
TERMINATION, AMENDMENT AND APPROVAL AGREEMENT (the
"Agreement"), dated as of April 1, 1997, among BESSEMER
HOLDINGS, L.P. (as successor to Bessemer Capital Partners,
L.P.), ("BHLP"), BESSEC HOLDINGS, L.P., BESSEMER HOLDINGS
SPECIAL SITUATIONS, L.P., BGE PARTNERS, L.P., BNE PARTNERS,
L.P., BTE PARTNERS, L.P. and BCE PARTNERS, L.P.
(collectively, the "BHLP Affiliates", and together with
BHLP, the "BH Group"), XXXXXXX, XXXXX & CO. ("Goldman"), GS
CAPITAL PARTNERS, L.P., STONE STREET FUND 1992, L.P. and
BRIDGE STREET FUND 1992, L.P. (collectively, the "GS
Partnerships"), XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES
CORPORATION ("DLJSC"), DLJ FIRST ESC L.L.C., DLJ MERCHANT
BANKING FUNDING, INC., DLJ MERCHANT BANKING PARTNERS, L.P.
and DLJ INTERNATIONAL PARTNERS, C.V. (collectively, the "DLJ
Partnerships"), CHASE EQUITY ASSOCIATES, L.P. (formerly
Chemical Equity Associates, A California Limited
Partnership) ("CEA") and BCP/ESSEX HOLDINGS INC. (as
successor to B E Acquisition Corporation) (the "Company").
WHEREAS the BH Group, the GS Partnerships, the DLJ Partnerships, CEA
and the Company are parties to an Investors Shareholders Agreement, dated as of
October 9, 1992 (as amended, the "Investor Shareholders Agreement");
WHEREAS the GS Partnerships, the DLJ Partnerships, CEA and the Company
are parties to a Stock and Warrant Subscription Agreement, dated as of October
9, 1992 (as amended, the "Stock and Warrant Subscription Agreement");
WHEREAS BHLP, DLJSC, Goldman and the Company are parties to an
Engagement Letter, dated July 22, 1992 (as amended by letter agreement dated
October 9, 1992) (the "Engagement Letter");
WHEREAS the Company is proposing to register for public sale, Company
common stock (the "Offering"), all as more fully described in the Registration
Statement on Form S-1, filed with the Securities and Exchange Commission on
February 19, 1997, as Registration No. 333-22043, as the
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same may be amended, supplemented or otherwise modified from time to time;
WHEREAS concurrent with the consummation of the Offering, the parties
hereto wish to terminate certain of their respective rights and obligations
under (i) the Investor Shareholders Agreement, (ii) the Stock and Warrant
Subscription Agreement and (iii) the Engagement Letter;
WHEREAS the capitalization of the Company currently provides for two
classes of common stock, which classes will be reclassified (the
"Reclassification") into a single class of common stock in connection with the
Offering; and
WHEREAS concurrent with the consummation of the Offering, CEA wishes
to approve the Reclassification.
NOW, THEREFORE, the parties hereby agree as follows:
1. Subject to paragraph 6 hereof, the Investor Shareholders Agreement
is hereby terminated.
2. The parties hereby waive (x) any pre-emptive rights they might have
in connection with the Company common stock offered in the Offering and (y) any
rights of first offer they might have in regard to sales of either (i) Company
common stock or (ii) warrants to purchase Company common stock, in each case
made by stockholders of the Company in connection with the Offering.
3. Subject to paragraph 6 hereof, Article VII of the Stock and Warrant
Subscription Agreement is hereby deleted.
4. Subject to paragraph 6 hereof, the Engagement Letter, other than
the indemnification and contribution obligations thereunder, is hereby
terminated.
5. Subject to paragraph 6 hereof, CEA hereby approves the
Reclassification.
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6. This Agreement shall be effective as of the closing date of the
Offering provided that (i) the DLJ Partnerships are permitted to sell, in the
aggregate, at least 250,000 shares of Company common stock in the Offering
(determined after giving effect to the proposed reverse stock split and treating
the sale of a warrant to purchase one share of Company common stock as the sale
of one share of Company common stock), (ii) following the Offering, the GS
Partnerships beneficially own, in the aggregate, not more than 9.9% of the
outstanding shares of Company common stock and (iii) following the Offering, CEA
beneficially owns not more than 4.9% of the outstanding shares of Company common
stock. In the event that the Offering is not consummated by July 1, 1997, or in
the event that the conditions provided in the immediately preceding sentence are
not satisfied, this Agreement shall be null and void as if it had never been
executed.
7. This Agreement may be signed in any number of counterparts, each of
which shall be an original and all of which together shall constitute the same
instrument, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
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8. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, regardless of the law that might be
applied under applicable principles of conflicts of law.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their authorized representatives as of the date first above written.
BESSEMER HOLDINGS, L.P.,
by KYLIX HOLDINGS L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
BESSEC HOLDINGS, L.P.,
by KYLIX HOLDINGS L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
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BESSEMER HOLDINGS SPECIAL SITUATIONS,
L.P.,
by KYLIX HOLDINGS L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
BGE PARTNERS, L.P.,
by KYLIX HOLDINGS L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
BNE PARTNERS, L.P.,
by KYLIX HOLDINGS L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
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BTE PARTNERS, L.P.,
by /s/ Xx Xxxxx
----------------------
Name: Xx Xxxxx
Title: Authorized Signatory
BCE PARTNERS, L.P.,
by KYLIX HOLDINGS L.L.C.,
its general partner,
by XXXXXXXX CORPORATION,
a manager,
by /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
XXXXXXX, SACHS & CO.,
by /s/
------------------------
Name:
Title:
GS CAPITAL PARTNERS, L.P.,
by GS ADVISORS, L.P.,
its general partner,
by GS ADVISORS, INC.,
its general partner,
by /s/
------------------------
Name:
Title:
0
XXXXX XXXXXX XXXX 0000, L.P.,
by STONE STREET PERFORMANCE CORP.,
its managing general partner,
by X.X. Xxxxxxxxx
----------------------------
Name: X.X. Xxxxxxxxx, V.P.
Title:
XXXXXX XXXXXX XXXX 0000, L.P.,
by STONE STREET PERFORMANCE CORP.,
its managing general partner,
by X.X. Xxxxxxxxx
----------------------------
Name: X.X. Xxxxxxxxx, V.P.
Title:
XXXXXXXXX, LUFKIND & XXXXXXXX SECURITIES
CORPORATION,
by /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ FIRST ESC L.L.C.,
by DLJ LBO PLANS MANAGEMENT
CORPORATION, a manager,
by /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Vice President
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DLJ MERCHANT BANKING FUNDING, INC.,
by /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ MERCHANT BANKING PARTNERS, L.P.,
by DLJ MERCHANT BANKING, INC.,
its managing general partner,
by /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ INTERNATIONAL PARTNERS, C.V.,
by DLJ OFFSHORE MANAGEMENT, N.V.,
its resident general partner,
by XXXXXXX TRUST (CURACAO) N.V.,
its managing director,
by /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Vice President
CHASE EQUITY ASSOCIATES, L.P.,
by CHASE VENTURE PARTNERS,
its general partner,
by /s/ Xxxx X'Xxxxxx
-------------------------
Name: Xxxx X'Xxxxxx
Title: General Partner
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BCP/ESSEX HOLDINGS INC.,
by /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & Chief
Executive Officer
