Exhibit 10(bb)
SECURITYHOLDERS AGREEMENT
SECURITYHOLDERS AGREEMENT, dated as of December 11, 2002, by and among
Essex Electric Inc., a Delaware corporation (the "Company"), Alpine Holdco Inc.,
a Delaware corporation ("Alpine Holdco"), and Superior TeleCom Inc., a Delaware
corporation ("Superior TeleCom").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, on the date hereof, the Company is issuing to Superior TeleCom a
warrant to purchase from the Company up to a total of 199 shares of common
stock, par value $.01 per share (the "Common Stock"), of the Company (the
"Warrant");
WHEREAS, Superior TeleCom currently is not a stockholder of the Company;
WHEREAS, the Securityholders desire to enter into this Agreement for the
purpose of regulating certain aspects of their relationship as securityholders
of the Company; and
WHEREAS, it is in the best interests of the Company and the
Securityholders that such aspects of their relationship be so regulated.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
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Section 1. Definitions. As used in this Agreement, the following terms
shall have the following respective meanings (such meanings being equally
applicable to both the singular and plural form of the terms defined).
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with such Person.
"Agreement" means this Securityholders Agreement, including all
amendments, modifications and supplements hereto and any exhibits or schedules
to any of the foregoing, and shall refer to this Agreement as the same may be in
force and effect at the time such reference becomes operative.
"As-Converted Basis" means, with respect to the calculation of the number
of shares of Common Stock, (i) all shares of Common Stock outstanding at the
time of determination and (ii) all shares of Common Stock issuable at the time
of determination upon exercise, conversion or exchange of any Convertible
Security.
"By-Laws" means the By-Laws of the Company, as the same may be in force
and effect as of the date hereof.
"Certificate of Incorporation" means the Certificate of Incorporation of
the Company, as the same may be in force and effect as of the date hereof.
"Company Securities" means, collectively, Common Stock and Convertible
Securities.
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"Convertible Securities" means any evidences of indebtedness, shares
(other than Common Stock) or other securities convertible into or exercisable or
exchangeable for Common Stock, including, without limitation, the Warrant.
"Governmental Authority" means any federal, state, local or foreign
government, or any subdivision, agency or instrumentality thereof, or any court,
tribunal or arbitrator.
"Initial Public Offering" means the sale by the Company of Common Stock in
an underwritten initial public offering pursuant to a registration statement on
Form S-1 (or a successor form) under the Securities Act.
"Minority Securityholders" means Superior TeleCom and each of its direct
and indirect Permitted Transferees, so long as any such Person shall hold
Company Securities.
"Majority Securityholders" means Alpine Holdco and each of its direct and
indirect Permitted Transferees, so long as any such Person shall hold Company
Securities.
"Permitted Transferee" means any transferee (other than the Company) of
Company Securities pursuant to and in compliance with Section 2.1, 2.2 or 2.5.
"Person" means any individual, corporation, limited liability company,
partnership, association or any other entity or organization.
"Rule 144 Sales" means open market sales pursuant to Rule 144 under the
Securities Act (or any successor rule or regulation) ("Rule 144") occurring
after an initial public offering of the Company and in compliance with Rule 144.
"Securities Act" means the Securities Act of 1933, as amended.
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"Securityholders" means, collectively, the Majority Securityholders and
the Minority Securityholders.
Section 2. Restrictions on Transfer of Company Securities.
2.1 Transfer Restricted.
2.1.1 No Company Securities, or any interest therein, shall be sold,
assigned, transferred, pledged, hypothecated or otherwise encumbered or disposed
of, directly or indirectly, except in accordance with or as otherwise
specifically permitted by the provisions of this Agreement or by applicable law.
The Company shall not transfer upon its books and records any Company Securities
purported to be transferred to any Person in violation of this Agreement.
2.1.2 In addition to each other restriction on transfer contained in
this Agreement, except for Rule 144 Sales, a sale of shares in a public
offering, a transfer to the Company and a sale pursuant to Section 2.3 or 2.4,
no Securityholder shall sell, assign, transfer, pledge, hypothecate or otherwise
encumber or dispose of any Company Securities, or any interest therein, to any
Person (regardless of the manner in which such Securityholder initially acquired
such Company Securities), unless (a) the certificates representing the
securities issued to the Permitted Transferee bear a legend substantially to the
following effect:
"THE SECURITIES REPRESENTED HEREIN ARE SUBJECT TO THE
PROVISIONS OF A SECURITYHOLDERS AGREEMENT DATED AS OF DECEMBER
11, 2002 (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY) AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE ENCUMBERED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SUCH SECURITYHOLDERS
AGREEMENT."
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and (b) the Permitted Transferee shall have executed and delivered to the
Company and each other Securityholder, as a condition to its acquisition of the
Company Securities, a Joinder Agreement, in the form of Exhibit A hereto.
2.1.3 In addition to each other restriction on transfer contained in
this Agreement, no Securityholder shall sell, assign, transfer, pledge,
hypothecate or otherwise encumber or dispose of any Company Securities, or any
interest therein, to any Person unless such sale, assignment, transfer, pledge,
hypothecation or other encumbrance or disposition is pursuant to an effective
registration statement under the Securities Act and under applicable state
securities laws or an exemption from such registration is available.
2.1.4 Subject to Sections 2.3 and 2.4, in addition to each other
restriction on transfer contained in this Agreement, no Minority Securityholder
may assign, transfer or sell any Company Securities, or any interest therein, to
any Person that is engaged, directly or indirectly, anywhere in the world, in
any business conducted as of the date hereof by the Company ("Competitive
Business"), and any such attempted assignment, transfer or sale in violation of
this provision shall be null and void and shall not be recorded on the books of
the Company; provided, however, that it shall not be a violation of this Section
2.1.4 for a Minority Securityholder to assign, transfer or sell any Company
Securities, or any interest therein, in a registered public offering or a Rule
144 Sale or to a Person who (i) owns any debt securities or other debt
obligations (other than convertible debt subject to clause (iii)) of any Person
engaged in a Competitive Business and does not have any other interest
prohibited hereunder, (ii) owns an interest in any Person that is not "engaged
primarily in a Competitive Business" (as defined below) or (iii) owns securities
representing less than five percent (5%) of the outstanding capital stock of any
Person, the securities of which are publicly traded or listed on any securities
exchange or automated quotation system. For purposes of this Section 2.1.4,
"engaged primarily in a Competitive Business" shall mean that at least 30% of
the consolidated net revenue derived during the last complete fiscal year of the
Person is derived from a Competitive Business.
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2.2 Certain Permitted Transfers. Notwithstanding anything in this
Agreement to the contrary, the restrictions contained in Sections 2.3, 2.4 and
2.5 of this Agreement with respect to transfers of Company Securities shall not
apply to:
(a) any transfer by a Securityholder to an Affiliate thereof (other
than the Company);
(b) any transfer by a Securityholder to the Company pursuant to any
agreement between the Company and such Securityholder; or
(c) any transfer by a Securityholder to its ultimate parent
corporation, if any (a "Parent"), or to any wholly-owned direct or indirect
subsidiary of such Parent (a "Controlled Subsidiary"), it being understood with
respect to such Controlled Subsidiary that the later sale, liquidation or
spin-off of such Controlled Subsidiary or other transaction in which the Parent
ceases to control, directly or indirectly, 100% of the equity of the Controlled
Subsidiary would constitute an indirect sale of Company Securities, which sale
may only be made in compliance with the terms and conditions set forth in this
Agreement;
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provided that in each of cases (a) through (c), any such Permitted Transferee
shall have executed and delivered to the Company and each other Securityholder a
Joinder Agreement, in the form of Exhibit A hereto. Any transfer of Company
Securities pursuant to and in compliance with this Section 2.2 shall be a
permitted transfer under this Agreement.
2.3 Right to Join in Sale.
2.3.1 If the Majority Securityholders propose in a single
transaction or series of related transactions permitted by this Agreement to
transfer 5% or more of the Common Stock held by them on an As-Converted Basis to
one or more third parties (a "Minority Sale"), then the Majority Securityholders
shall refrain from effecting a Minority Sale unless, prior to the consummation
thereof, the Minority Securityholders shall have been afforded the opportunity
to join in such Minority Sale on a pro rata basis, as hereinafter provided. Any
purported transfer subject to this Section 2.3 not made in compliance with this
Section 2.3 shall be void and shall not be consummated upon the books and
records of the Company.
2.3.2 Prior to the consummation of any Minority Sale, the Majority
Securityholders shall cause each Person or Persons that propose to acquire
Company Securities in the Minority Sale (the "Proposed Purchaser") to offer (the
"Purchase Offer") in writing to purchase from each Minority Securityholder that
number of shares of Common Stock from such Minority Securityholder that
constitutes the same percentage of the aggregate number of shares of Common
Stock held by such Minority Securityholder on an As-Converted Basis as the
percentage determined by dividing the number of shares of Common Stock on an
As-Converted Basis to be purchased from the Majority Securityholders by the
aggregate number of shares of Common Stock held by the Majority Securityholders
on an As-Converted Basis, at the same price per share, and on such other terms
and conditions, as the Proposed Purchaser has offered to purchase the Company
Securities to be sold by the Majority Securityholders. Each of the Minority
Securityholders shall have 10 days from the receipt of the Purchase Offer in
which to accept the Purchase Offer by giving written notice to the Company and
the Majority Securityholders of any intention to accept such Purchase Offer. To
the extent any Minority Securityholder accepts such Purchase Offer in accordance
with the terms hereof, the number of shares of Common Stock on an As-Converted
Basis to be sold by the Majority Securityholders shall be reduced accordingly.
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2.3.3 The provisions of this Section 2.3 shall not apply to (w) Rule
144 Sales otherwise permitted by this Agreement, (x) a sale of shares in a
public offering and (y) transfers to Permitted Transferees in accordance with
Section 2.2. The Majority Securityholders shall notify any third party
transferee that the transfer of Company Securities pursuant to this Section 2.3
is subject to this Agreement and shall ensure that no Minority Sale is
consummated without compliance with this Section 2.
2.3.4 Notwithstanding any other provision hereof, if a Minority
Securityholder is a Securityholder by virtue of the fact that it holds the
Warrant, such Minority Securityholder must exercise the Warrant in accordance
with the terms and conditions thereof, and thereby become a stockholder of the
Company, in order to participate in a Minority Sale.
2.4 Right to Require Sale.
2.4.1 Notwithstanding anything to the contrary in Section 2.3, if
the Majority Securityholders propose in a single transaction or series of
related transactions permitted by this Agreement to transfer all of the shares
of Common Stock on as As-Converted Basis held by them to one or more third
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parties (an "Entire Sale"), then the Majority Securityholders shall have the
right to require the Minority Securityholders, upon 20 days' written notice, to
sell all of their shares of Common Stock on as As-Converted Basis to such third
party(ies) at the same price per share, and on such other terms and conditions,
as such third party(ies) has offered to purchase the Common Stock on as
As-Converted Basis to be sold by the Majority Securityholders. In such event,
the Minority Securityholders shall take all reasonable actions as the Majority
Securityholders shall deem necessary or appropriate to effect the sale of such
securities of the Minority Securityholders, including, without limitation, the
prompt delivery of stock certificates and duly endorsed stock powers with
respect to all of the shares then owned by the Minority Securityholders. Subject
to the terms and provisions of confidentiality agreements with prospective
purchasers and their representatives, the Majority Securityholders and the
Company shall keep the Minority Securityholders reasonably informed of the
existence of negotiations that are reasonably likely to result in a transaction
which would lead to the exercise by the Majority Securityholders of the right to
require a sale by the Minority Securityholders.
2.4.2 The provisions of this Section 2.4 shall not apply to (w) Rule
144 Sales otherwise permitted by this Agreement, (x) a sale of shares in a
public offering and (y) transfers to Permitted Transferees in accordance with
Section 2.2.
2.5 Right of First Refusal. Except as otherwise permitted under Sections
2.2, 2.3 and 2.4 of this Agreement, and in addition to the other restrictions on
transfer contained in this Agreement, the Minority Securityholders may sell or
otherwise transfer Company Securities only in compliance with the provisions of
this Section 2.5.
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2.5.1 Any Minority Securityholder desiring to sell or otherwise
transfer Company Securities (a "Selling Securityholder") shall first deliver
written notice to Alpine Holdco (the "Offer Notice"), which Offer Notice shall
specify: (i) the type and number of Company Securities owned by the Selling
Securityholder which such Selling Securityholder wishes to sell or transfer (the
"Offered Securities"); (ii) the proposed purchase price per share for the
Company Securities (the "Offer Price"); (iii) the identity of the proposed
transferee (the "Proposed Transferee"); and (iv) all other material terms and
conditions of the offer.
2.5.2 Within 10 days after Alpine Holdco's receipt of the Offer
Notice, Alpine Holdco shall notify the Selling Securityholder in writing as to
the number of Company Securities, if any, it is electing to purchase. If Alpine
Holdco does not provide such notice to the Selling Securityholder prior to the
expiration of such 10-day period, Alpine Holdco shall be deemed to have declined
to purchase any of the Offered Securities.
2.5.3 The Selling Securityholder may, within 60 days after the date
of the Offer Notice, sell any Offered Securities that Alpine Holdco has not
elected to purchase pursuant to this Section 2.5 to the Proposed Transferee for
cash at a price per share not less than the Offer Price, and on such other
material terms and conditions as are no more favorable to the Proposed
Transferee than those contained in the Offer Notice. Upon the consummation of
any such sale, the Proposed Transferee shall execute and deliver to the Company
and each other Securityholder a Joinder Agreement, in the form of Exhibit A
hereto. If the Selling Securityholder does not complete the sale of the Offered
Securities to the Proposed Transferee within such 60-day period, the provisions
of this Section 2.5 shall again apply, and no sale or other transfer of such
Offered Securities by the Selling Securityholder shall be made otherwise than in
accordance with the terms of this Agreement.
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2.5.4 The closing of the purchase of any Offered Securities elected
to be purchased by Alpine Holdco pursuant to this Section 2.5 shall take place
no later than 20 days after the date of the Offer Notice. At such closing, the
Selling Securityholder shall sell, transfer and deliver to Alpine Holdco full
right, title and interest in and to the Offered Securities so purchased by
Alpine Holdco, free and clear of any pledge, lien, security interest or other
encumbrance, and Alpine Holdco shall deliver to the Selling Securityholder, in
immediately available funds by bank check or wire transfer to an account
designated in writing by the Selling Securityholder the full purchase price for
the Offered Securities being acquired.
2.5.5 Notwithstanding any other provision hereof, Alpine Holdco may
assign its rights under this Section 2.5 to any of its Affiliates or to any
Majority Securityholder.
Section 3. Right to Purchase New Securities. The Company hereby grants to
the Minority Securityholders a right to purchase all or any part of each of the
Minority Securityholders' "pro rata share" (as defined in this Section 3) of any
"New Securities" (as defined in this Section 3) that the Company may, from time
to time, propose to issue or sell. Such right shall be subject to the following
provisions of this Section 3.
3.1 "Pro Rata Share." "Pro rata share," as applicable to each Minority
Securityholder, for purposes of this Section 3, is the ratio that (i) the total
number of shares of Common Stock on an As-Converted Basis held by such Minority
Securityholder immediately prior to such issuance bears to (ii) the total number
of shares of Common Stock on an As-Converted Basis outstanding immediately prior
to such issuance.
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3.2 "New Securities". "New Securities" shall mean any shares of capital
stock of the Company and any Convertible Securities; provided, however, that
"New Securities" shall not include (i) securities issuable upon exercise,
conversion or exchange of other securities of the Company, (ii) securities
offered to the public generally pursuant to an effective registration statement
under the Securities Act, (iii) securities issued to officers, directors or
employees of, or consultants to, the Company pursuant to stock options
outstanding on the date hereof or stock options granted after the date hereof on
terms approved by the Board of Directors of the Company or a committee thereof
(as adjusted for any stock splits, stock dividends or stock combinations), (iv)
shares of the Company's capital stock issued pursuant to any rights or
agreements, including, without limitation, Convertible Securities, provided that
the purchase rights established by this Section 3 shall apply with respect to
the initial sale or grant by the Company of such rights or agreements, (v)
shares of the Company's capital stock issued in connection with any stock split,
stock dividend or recapitalization by the Company, (vi) shares issued pursuant
to any employment agreement or employee benefit plan approved by the Company's
Board of Directors or a committee thereof or (vii) securities issued in
connection with the acquisition of all or substantially all of the assets,
shares or other interests of any other Person by the Company (whether by merger,
consolidation, stock or asset purchase or otherwise).
3.3 Procedure. In the event that the Company proposes to undertake an
issuance of New Securities, the Company shall give the Minority Securityholders
written notice of its intention, describing the type of New Securities and the
price and other terms and conditions upon which the Company proposes to issue
such New Securities. Each of the Minority Securityholders shall have 20 days
from the date any such notice is given to agree to purchase all or any part of
its pro rata share of such New Securities at the price and upon the other terms
and conditions specified in the Company's notice by giving written notice to the
Company of its intention to exercise its purchase right and stating therein the
number of New Securities, up to its pro rata share, to be purchased. The failure
of any Minority Securityholder to notify the Company within such 20-day period
shall constitute an election by such Minority Securityholder not to exercise its
purchase right with respect to such issuance. Within 10 days following the date
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of issuance of the New Securities, the Company shall issue to each applicable
Minority Securityholder such number of New Securities as any such Minority
Securityholder requested in its notice to the Company and, simultaneously
therewith, each applicable Minority Securityholder shall pay to the Company the
purchase price therefor in immediately available funds by bank check or wire
transfer to an account designated in writing by the Company.
Section 4. Representations and Warranties. Each of the parties hereto
severally as to itself, and not jointly, hereby represents and warrants to each
of the other parties to this Agreement that:
(i) such party has the full corporate power and authority to
execute, deliver and perform this Agreement;
(ii) such party has taken all requisite corporate action to approve,
execute and deliver this Agreement, and this Agreement has been duly executed
and delivered by such party and constitutes a legal, valid and binding
obligation of such party, enforceable against such party in accordance with its
terms, except to the extent such enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws affecting the rights of creditors generally or by the application of
general equity principles;
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(iii) no consent, approval, authorization or order of any Person is
required for the execution, delivery or performance of this Agreement by such
party;
(iv) none of the execution, delivery or performance of this
Agreement by such party will (A) conflict with or result in a violation of its
certificate of incorporation or bylaws, (B) conflict with, or result in a breach
of, or constitute a default under, or result in a violation of, any agreement or
instrument to which such party is a party or by which such party or any of its
properties is bound, or (C) result in the violation of any applicable law,
order, judgment, writ, injunction, decree or award of any Governmental
Authority; and
(v) the Company Securities held by such party are being held for its
own account for investment and without a view to the public distribution of such
Company Securities or any interest therein.
Each of the parties hereto agrees that the representations and warranties
set forth in this Section 4 shall survive the execution and delivery of this
Agreement.
Section 5. Termination of Securityholders Agreement. If at any time the
Minority Securityholders do not own any Company Securities, this Agreement will
terminate, without any other action by the parties or otherwise.
Section 6. Intentionally Omitted.
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Section 7. Registration Rights Agreement. Prior to the consummation of an
initial public offering of the Common Stock, the Company, the Majority
Securityholders and the Minority Securityholders shall negotiate in good faith
for the purpose of entering into a registration rights agreement with respect to
the Common Stock providing for, among other things, customary demand and
piggyback registration rights in each case for the Majority Securityholders and
the Minority Securityholders (based on the amount of securities of the Company
then owned on an As-Converted Basis by any such party); provided, however, that
if, immediately prior to the consummation of such initial public offering, the
Minority Securityholders collectively own less than 5% of the Common Stock on an
As-Converted Basis then outstanding, then the Minority Securityholders shall not
have any rights under such registration rights agreement. Each Minority
Securityholder shall have the opportunity to participate in any Initial Public
Offering as a selling shareholder on a pro rata basis and on the same terms and
conditions as the Majority Securityholders for the applicable Common Stock into
which the Warrant shall be exercised.
Section 8. Delivery of Information. So long as the Warrant remains
outstanding or the Minority Securityholders own 5% or more of the outstanding
shares of Common Stock on an As-Converted Basis, Alpine Holdco shall furnish to
the Minority Securityholders as soon as available, but in any event within 120
days after the end of each fiscal year of the Company, a copy of the audited
financial statements of Alpine Holdco on a consolidated basis, and a copy of the
unaudited financial statements of Alpine Holdco on a consolidating basis, as at
the end of such fiscal year; provided, however, that if such information is not
then required to be provided to the lender under the Loan and Security
Agreement, dated as of the date hereof, by and among the Company, Alpine Holdco,
DNE Technologies, Inc., DNE Manufacturing and Service Company, as borrowers, DNE
Systems, Inc., as guarantor, the lenders identified from time to time
signatories thereto and Foothill Capital Corporation, as agent, then the
financial statements furnished to the Minority Securityholders may be unaudited.
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Section 9. Confidentiality. Each of the Minority Securityholders agrees
that, unless Alpine Holdco or the Company, as the case may be, otherwise
consents in writing, it will maintain the confidentiality of any information
provided to it pursuant to Section 8 hereof and any communications from the
Company to Securityholders, in its capacity as a Securityholder; provided,
however, that the Minority Securityholders may disclose any such information (i)
to their respective Affiliates, and to their and their respective Affiliates'
officers, directors, employees, partners, agents, accountants, counsel and other
professional advisors, (ii) that is or has become generally available to the
public other than as a result of a breach of this Section 9, (iii) as may be
required in any filing, report, statement or testimony submitted to any
Governmental Authority, (iv) as may be required in response to any summons or
subpoena or in connection with any litigation, (v) to comply with any law,
order, regulation or other applicable ruling and (vi) to any prospective
Permitted Transferee in connection with any contemplated permitted transfer of
any of the Company Securities (or any interest therein) pursuant to the terms
and subject to the conditions of this Agreement, provided that such prospective
Permitted Transferee agrees to be bound by this Section 9 to the same extent as
the Minority Securityholders. The confidentiality obligations pursuant to this
Section 9 shall expire on the date which is 2 years from receipt by the Minority
Securityholders of any such information.
Section 10. Miscellaneous.
10.1 Specific Performance. Since a breach of the provisions of this
Agreement could not adequately be compensated by money damages, any party shall
be entitled, in addition to any other right or remedy available to it, to an
injunction restraining such breach or a threatened breach and to specific
performance of any provision of this Agreement, and in either case no bond or
other security shall be required in connection therewith, and the parties hereby
consent to the issuance of such injunction and to the ordering of specific
performance.
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10.2 Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto reasonably may request in order to carry out
the intent and accomplish the purposes of this Agreement.
10.3 Governing Law. This Agreement and the rights and obligations of
the parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Delaware.
10.4 Entire Agreement; Amendment; Waiver. This Agreement: (a)
contains the entire agreement among the parties hereto with respect to the
subject matter hereof, (b) supersedes all prior written agreements and
negotiations and oral understandings, if any, with respect thereto and (c) may
not be amended or supplemented except by an instrument in writing signed by the
parties hereto. No waiver of any term or provision of this Agreement shall be
effective unless in writing signed by the party to be charged. The waiver by any
party of a breach of any term or provision of this Agreement shall not be
construed as a waiver of any subsequent breach.
10.5 Binding Effect. This Agreement shall be binding on and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns. The rights and obligations arising from this Agreement shall be
transferred in connection with the transfer by a Securityholder to any Person of
any Company Securities in compliance with this Agreement, other than in a
registered public offering or in Rule 144 Sales, and any such Person shall
conclusively be deemed to have agreed to be bound by this Agreement pursuant to
the terms and subject to the conditions hereof.
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10.6 Invalidity of Provision. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction.
10.7 Notice. All notices and other communications provided for
herein shall be dated and in writing and shall be deemed to have been duly given
(x) on the date of delivery, if delivered personally or by telecopier, receipt
confirmed, (y) on the following business day, if delivered by a recognized
overnight courier service or (z) three days after mailing, if sent by registered
or certified mail, return receipt requested, postage prepaid, in each case, to
the party to whom it is directed at the address set forth below (or at such
other address as any party hereto shall hereafter specify by notice in writing
to the other parties hereto): If to the Company or Alpine Holdco:
c/o The Alpine Group, Inc.
Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attention: Chairman
Fax: (000) 000-0000
If to Superior TeleCom:
Superior TeleCom Inc.
Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
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If to any other Securityholder, to such address provided to the Company in
writing.
10.8 Headings; Execution in Counterparts. The headings and captions
contained herein are for convenience of reference only and shall not control or
affect the meaning or construction of any provision hereof. This Agreement may
be executed in any number of counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, a duly authorized officer of each of the parties
hereto has executed this Agreement as of the date first above written.
ESSEX ELECTRIC INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Secretary
ALPINE HOLDCO INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Secretary
SUPERIOR TELECOM INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: President and Chief Operating Officer
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EXHIBIT A
Form of Joinder Agreement
Essex Electric Inc.
c/o The Alpine Group, Inc.
Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attention: []
Ladies and Gentlemen:
_________In consideration of the transfer to the undersigned of ____ shares of
common stock, par value $.01 per share, [Describe any other security being
transferred] of Essex Electric Inc., a Delaware corporation (the "Company"), the
undersigned represents that it is a Permitted Transferee of [insert name of
transferor] and agrees that, as of the date written below, [he] [she] [it] shall
become a party to that certain Securityholders Agreement, dated as of December
11, 2002, as such agreement may have been or may be amended from time to time
(the "Agreement"), by and among the Company, Alpine Holdco Inc. and Superior
TeleCom Inc., and as a Permitted Transferee shall be fully bound by, and subject
to, all of the covenants, terms and conditions of the Agreement applicable to
the undersigned's transferor as though an original party thereto and shall be
deemed a [Majority Securityholder][Minority Securityholder] for purposes
thereof.
Executed as of the ____ day of _________, ____,
Transferee: _____________________
Print Name: _____________________
Address: _____________________
_____________________
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