Exhibit 10(cc)
AMENDMENT NO. 1
TO
SECURITYHOLDERS AGREEMENT
This Amendment No. 1 to Securityholders Agreement (this "AMENDMENT") is
made and entered into as of September 26, 2003, 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").
R E C I T A L S
A. The Company, Alpine Holdco and Superior TeleCom are parties to a
Securityholders Agreement dated as of December 11, 2002 (the "SECURITYHOLDERS
AGREEMENT"). Capitalized terms used in this Agreement shall, unless otherwise
expressly provided herein, have the same meanings given to such terms in the
Securityholders Agreement.
B. Section 10.4 of the Securityholders Agreement provides that the
Securityholders Agreement may not be amended or supplemented except by an
instrument in writing signed by the parties thereto.
C. The Company, Alpine Holdco and Superior TeleCom now mutually desire to
amend the Securityholders Agreement as set forth below.
A G R E E M E N T
NOW, THEREFORE, the parties hereby agree as follows:
1. AMENDMENT TO SECTION 3.3. Section 3.3 of the Securityholders Agreement
is hereby amended to read in its entirety as follows:
"3.3. Procedure. In the event that the Company proposes to
undertake an issuance of New Securities, the Company shall provide the
Minority Securityholders with (a) 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, (b) the Company's financial statements for the most recent
fiscal quarter and fiscal year to date for which the Company would have
been required to file such financial statements under Forms 10-Q and
10-K, respectively, of the Securities Exchange Act of 1934, as amended,
as if the Company were subject to such filing requirements on the date
notice of the Company's proposed issuance of New Securities was given
to the Minority Securityholders, and (c) following a request from the
Minority Securityholders and subject to the execution of a reasonably
acceptable confidentiality agreement by the Minority Securityholders, a
copy of any board package or similar presentation made by the Company
to the Majority Securityholders regarding the investment in the New
Securities. The Company's financial statements which are provided to
the Minority Securityholders shall have been prepared in accordance
with the requirements of the Securities and Exchange Commission for
Forms 10-Q and 10-K (including comparative income statement, balance
sheet, statement of cash flows and statement of stockholders' equity),
but may exclude footnotes and other supplemental information typically
filed as part of Forms 10-Q and 10-K, including Management's Discussion
and Analysis of Financial Condition and Results of Operations, exhibits
pursuant to Forms 10-Q and 10-K, disclosure requirements and any
certifications otherwise required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
or similar legislation. Management of each Minority Securityholder
shall be given reasonable access to the Company's management for
inquiries regarding the aforementioned financial statements of the
Company, as well as with respect to the Company's operational plans,
business conditions and outlook.
Each of the Minority Securityholders shall have 20 days from the later of
(i) the date any such notice is given or (ii) the date that this information
required by sub-paragraphs (b) and (c) above, is delivered, 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 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."
2. MUTUAL CONFIDENTIALITY. Except as otherwise authorized or required
herein, neither party will, at any time or in any manner, either directly or
indirectly, divulge, disclose or communicate to any Person firm or corporation
in any manner whatsoever any information concerning any matters affecting or
relating to the business of the other party, including without limitation, any
of its customers, the prices it obtains for its products, or any other
information concerning the business of the other party, its manner of operation,
its plans, processes, or other data; provided however, that a party may make
such disclosure of any of the above information (i) upon the prior written
consent of the other; (ii) as is required to be made to either of such party or
their respective lenders; and (iii) as may be required by law or is information
generally available to the public.
3. EFFECT OF AMENDMENT. This Amendment shall be effective and binding on
all parties thereto. To the extent that this Amendment is inconsistent with or
conflicts with the Securityholders Agreement, the terms of this Amendment shall
govern. Except as expressly provided in this Amendment, all terms, conditions
and provisions of the Securityholders Agreement remain unchanged and in full
force and effect.
4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered will be deemed an
original, and all of which together shall constitute one and the same agreement.
5. GOVERNING LAW. This Amendment shall be construed and enforced in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the undersigned have executed and entered into this
Amendment as of the date first written above.
ESSEX ELECTRIC INC.,
a Delaware corporation
By: /s/ ▇. ▇▇▇▇▇▇▇▇ Posner
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Name: ▇. ▇▇▇▇▇▇▇▇ Posner
Title: Executive Vice-President
ALPINE HOLDCO INC.,
a Delaware corporation
By: /s/ ▇. ▇▇▇▇▇▇▇▇ Posner
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Name: ▇. ▇▇▇▇▇▇▇▇ Posner
Title: Executive Vice-President
SUPERIOR TELECOM INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice-President, Chief
Financial Officer