Exhibit 4.04 AMENDMENT NO. 2 dated as of June 5, 1995, to STOCK AND WARRANT SUBSCRIPTION AGREEMENT dated as of October 9, 1992, among BCP/ESSEX HOLDINGS, INC. (as successor by merger to B E Acquisition Corporation) ("Holdings") and each of the parties...
Exhibit 4.04
AMENDMENT NO. 2 dated as of June 5, 1995, to STOCK AND
WARRANT SUBSCRIPTION AGREEMENT dated as of October 9, 1992, among
BCP/ESSEX HOLDINGS, INC. (as successor by merger to B E
Acquisition Corporation) ("Holdings") and each of the parties
named on the signature pages hereof (the "Investors").
Holdings and the Investors are parties to the Stock and Warrant
Subscription Agreement dated as of October 9, 1992, as amended by Amendment
No. 1 dated as of April 1, 1993 ("Amendment No. 1") (as so amended, the
"Subscription Agreement"). Pursuant to Amendment No. 1 certain employees and
affiliates of Xxxxxxxxx Xxxxxx & Xxxxxxxx Securities Corporation ("DLJSC")
(together with permitted transferees of such employees specified in clauses
(1) through (5) of Section 6.02 of the Shareholders Agreement, the
"Employees") were granted certain rights under the Subscription Agreement,
subject to the terms of several Custody Agreements. Pursuant to an
Assignment and Agreement to Be Bound dated as of December 16, 1994 among
DLJSC, DLJ First ESC L.L.C. ("DLJFE") and Holdings, these shares of Series A
Preferred Stock and Warrants were transferred to DLJFE. Holdings and the
Investors wish to amend a provision of the Subscription Agreement upon the
terms and subject to the conditions set forth herein.
In consideration of the premises and the agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally
bound hereby, the parties hereto agree as follows:
Section 1. DEFINITIONS. Capitalized terms used but not defined
herein have the meanings assigned to them in the Subscription Agreement.
Section 2. AMENDMENT TO THE SUBSCRIPTION AGREEMENT. (a) Section
6.1 of the Subscription Agreement is hereby amended by deleting the text
thereof in its entirety.
(b) Section 6.2 of the Subscription Agreement is hereby amended by
deleting the text thereof in its entirety.
Section 3. COUNTERPARTS. This Amendment No. 2 may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered
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shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 4. HEADINGS, ETC. The headings of the various Sections of
this Amendment No. 2 are for convenience of reference only and shall not
modify, define, expand or limit any of the terms or provisions hereof.
Section 5. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE INTERPRETATION, VALIDITY AND PERFORMANCE OF THE TERMS OF THIS
AGREEMENT, REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER APPLICABLE
PRINCIPLES OF CONFLICTS OF LAWS.
Section 6. SEVERABILITY. Any provision of this Amendment No. 2
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction
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shall not invalidate or render unenforceable such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be duly executed on the date first written above.
BCP/ESSEX HOLDINGS, INC.
by
/s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President,
Treasurer and Chief
Financial Officer
(Principal Financial
Officer)
Investors:
GS CAPITAL PARTNERS, L.P.,
by GS ADVISORS, L.P.,
its general partner,
by GS ADVISORS, INC.,
its general partner,
by
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
0
XXXXX XXXXXX XXXX 0000, L.P.,
by STONE STREET PERFORMANCE
CORP., its general partner
by
/s/ X.X. Xxxxxxxxx
-------------------------------
Name: X.X. Xxxxxxxxx
Title: Vice President
BRIDGE STREET FUND 1992 L.P.,
by STONE STREET PERFORMANCE
CORP., its general partner
by
/s/ X.X. Xxxxxxxxx
-------------------------------
Name: X.X. Xxxxxxxxx
Title: Vice President
DLJ MERCHANT BANKING FUNDING, INC.
by
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
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DLJ INTERNATIONAL PARTNERS, C.V.
by DLJ MERCHANT BANKING, INC.,
its advisory general partner
by
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary and
Treasurer
DLJ MERCHANT BANKING PARTNERS, L.P.
by DLJ MERCHANT BANKING, INC.,
its managing general partner
by
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary and
Treasurer
DLJ FIRST ESC L.L.C.,
by DLJ LBO Plans Management
Corporation,
by
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and
Secretary
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CHEMICAL EQUITY ASSOCIATES, A
CALIFORNIA LIMITED PARTNERSHIP
by CHEMICAL VENTURE PARTNERS,
its general partner
by
/s/
-------------------------------
Name:
Title:
