SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Essex International Inc.
(Name of Issuer)
Common Stock (par value $0.01 per share)
(Title of Class of Securities)
297025108
(CUSIP Number)
David J. Greenwald, Esq.
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
(212) 902-1000
(Name, address and telephone number of person authorized
to receive notices and communications)
April 30, 1997
(Date of Event which requires Filing of this Statement)
If a filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
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CUSIP NO. 297025108
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs & Co.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
See Item 3.
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[X]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 2,243,377.5
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
2,243,377.5
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,243,377.5
- ------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.7%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
BD-PN-IA
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CUSIP NO. 297025108
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- ------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Goldman Sachs Group, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
See Item 3.
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 2,243,377.5
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
2,243,377.5
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,243,377.5
- ------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.7%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
HC-PN
- ------------------------------------------------------------
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CUSIP NO. 297025108
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- ------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Advisors, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
See Item 3.
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 2,107,621
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
2,107,621
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,107,621
- ------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.3%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
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CUSIP NO. 297025108
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- ------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
See Item 3.
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 2,107,621
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
2,107,621
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,107,621
- ------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.3%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
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CUSIP NO. 297025108
- --------------------
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stone Street Fund 1992, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
See Item 3.
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 28,396
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
28,396
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
28,396
- ------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- ------------------------------------------------------------
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<PAGE>
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CUSIP NO. 297025108
- --------------------
- ------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Bridge Street Fund 1992, L.P.
- ------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
See Item 3.
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 17,110.5
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
17,110.5
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
17,110.5
- ------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
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CUSIP NO. 297025108
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- ------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stone Street Performance Corp.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
See Item 3.
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 45,506.5
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
45,506.5
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
45,506.5
- ------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
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<PAGE>
SCHEDULE 13D
RELATING TO THE COMMON STOCK OF
ESSEX INTERNATIONAL INC.
Item 1. Security and Issuer.
This Statement on Schedule 13D relates to the Common Stock, par value
$.01 per share (the "Common Stock"), of Essex International Inc., a Delaware
corporation (the "Company").
The principal executive offices of the Company are located at 1601 Wall
Street, Fort Wayne, Indiana 46802.
Item 2. Identity and Background.
This Statement is being filed by GS Capital Partners, L.P. ("GS
Capital"), GS Advisors, L.P. ("GS Advisors"), Stone Street Fund 1992, L.P.
("Stone Street"), Bridge Street Fund 1992, L.P. ("Bridge Street" and together
with GS Capital and Stone Street, the "Limited Partnerships"), Stone Street
Performance Corp. ("Performance"), Goldman, Sachs & Co. ("GS") and The Goldman
Sachs Group, L.P. ("GS Group", and together with GS, GS Advisors, Performance
and the Limited Partnerships, the "Filing Persons")1.
As of May 13, 1997, GS and GS Group may be deemed to indirectly own
beneficially 2,153,127.5 shares of Common Stock through the Limited
Partnerships. In addition, as of May 13, 1997, GS, and GS Group indirectly, may
be deemed to own beneficially 90,250 shares of Common Stock held in client
accounts with respect to which GS or employees of GS have voting or investment
discretion, or both ("Managed Accounts"). GS and GS Group each disclaims
beneficial ownership of shares of Common Stock (i) owned by the Limited
Partnerships to the extent of partnership interests in the Limited Partnerships
held by persons other than GS, GS Group or their affiliates and (ii) held in
Managed Accounts.
GS Capital, a Delaware limited partnership, was formed for the purpose
of investing in equity and equity-related securities primarily acquired or
issued in leveraged acquisitions, reorganizations and other private equity
transactions. GS Advisors, a Delaware limited partnership, is the sole general
partner of GS Capital. Stone Street and Bridge Street, each a Delaware limited
partnership, were formed for the purpose of investing in equity and
equity-related securities primarily acquired or issued in leveraged
acquisitions, reorganizations and other private equity transactions and in other
financial
- --------
1 Neither the present filing nor anything contained herein shall be construed as
an admission that any Filing Person constitutes a "person" for any purposes
other than Section 13(d) of the Securities Exchange Act of 1934 or that the
Filing Persons constitute a "group" for any purpose.
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<PAGE>
instruments. Performance, a Delaware corporation, is the sole general partner of
Stone Street and the sole managing general partner of Bridge Street. GS, a New
York limited partnership, is an investment banking firm and a member of the New
York Stock Exchange, Inc. and other national exchanges. GS also serves as the
investment manager for GS Capital. GS Group, one of the general partners of GS,
owns a 99% interest in GS. GS Group is a Delaware limited partnership and
holding partnership that engages (directly and indirectly through subsidiaries
or affiliated companies or both) in the business of buying and selling
securities, both foreign and domestic, and in making investments on behalf of
its partners. The other general partner of GS is The Goldman, Sachs & Co.
L.L.C., a Delaware limited liability company ("GS L.L.C."), which is
wholly-owned by GS Group and The Goldman Sachs Corporation, a Delaware
corporation ("GS Corp."). GS Corp. is the sole general partner of GS Group. The
principal business address of each Filing Person, GS L.L.C. and GS Corp., is 85
Broad Street, New York, NY 10004.
The name, business address, present principal occupation or employment
and citizenship of each director and of each member of the executive committee
of GS Corp. and GS L.L.C. and of each member of the executive committee of GS
Group and GS are set forth in Schedule I hereto and are incorporated herein by
reference. The name, business address, present principal occupation or
employment and citizenship of each director and each executive officer of GS
Advisors, Inc., a Delaware corporation that is the sole general partner of GS
Advisors, are set forth in Schedule II-A hereto and are incorporated herein by
reference. The name, business address, present principal occupation or
employment and citizenship of each director and each executive officer of
Performance are set forth on Schedule II-B hereto and are incorporated herein by
reference.
During the last five years, none of the Filing Persons, or, to the
knowledge of each of the Filing Persons, any of the persons listed on Schedule
I, II-A or II-B hereto, (i) has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) except as set
forth in Schedule III to this Schedule 13D, has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws, or finding any violation with
respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
On October 9, 1992, GS Capital acquired 4,264,986 shares of class A
common stock, par value $.01 per share (the "Class A Common Stock"), of the
Company, for $12,187,500 in cash, Stone Street acquired 68,240 shares of Class A
Common Stock for $195,000 in cash and Bridge Street acquired 41,119 shares of
Class A Common Stock for $117,500 in cash. On the same date, GS Capital
acquired, for $1,638,807 in cash, 2,185,076 warrants ("Warrants") to purchase
shares of Class A Common Stock, Stone
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<PAGE>
Street acquired 34,961 Warrants for $26,221 in cash and Bridge Street acquired
21,066 Warrants for $15,800 in cash. Each such Warrant entitled the holder to
purchase one share of Class A Common Stock at an exercise price of $2.85757 per
share, subject to certain adjustments. On July 3, 1996, GS Capital made a
further acquisition of 800,000 shares of Class A Common Stock at a purchase
price of $4,000,000 in cash.
In connection with the Company's initial public offering (the "IPO"),
the Class A Common Stock was reclassified into Common Stock and was subject to a
two-for-one reverse stock split and the Warrants were adjusted for such
reclassification and stock split. On April 23, 1997, in connection with the IPO,
GS Capital sold 57,737 shares of Common Stock and all of its 1,092,538 Warrants,
Stone Street sold 778 shares of Common Stock and 17,480 of its 17,480.5 Warrants
and Bridge Street sold 469 shares of Common Stock and all of its 10,533 Warrants
to the Underwriters (as defined below). On or about April 23, 1997, Stone Street
surrendered its remaining 0.5 Warrant to the Company. On May 1, 1997, in
connection with the Underwriters' exercise of their over-allotment options in
the IPO, GS Capital sold an additional 367,135 shares of Common Stock, Stone
Street sold an additional 4,946 shares of Common Stock and Bridge Street sold an
additional 2,980 shares of Common Stock to the Underwriters. All of the sales of
Common Stock and Warrants by the Limited Partnerships to the Underwriters in
connection with the IPO were at a price of $15.98 per share of Common Stock and
$10.6077684 per Warrant, in cash.
As of May 13, 1997, GS held 90,250 shares of Common Stock for Managed
Accounts which were acquired in the ordinary course of business on or after
April 23, 1997. In addition, since April 23, 1997, GS has purchased and sold
shares of Common Stock in certain ordinary course trading activities related to
the underwriting of the IPO. All such transactions are set forth on Schedule IV
hereto and, except where otherwise specified on Schedule IV, were effected in
the over-the-counter market. The aggregate consideration for the purchases
listed on Schedule IV was $57,159,865.20.
The funds used by the Limited Partnerships to purchase the shares of
Class A Common Stock and Warrants discussed above were obtained by the Limited
Partnerships from capital contributions by the partners of the Limited
Partnerships and from the Limited Partnerships' available funds. The funds used
to purchase shares of Common Stock for the Managed Accounts came from client
funds.
None of the persons listed on Schedules I, II-A or II-B hereto has
contributed any funds or other consideration towards the purchase of the
securities of the Company, except insofar as they may be general or limited
partners of the Limited Partnerships and have made capital contributions to such
Limited Partnerships, as the case may be.
Item 4. Purpose of the Transaction.
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<PAGE>
The Shares of Common Stock and Warrants were acquired by the Filing
Persons for investment purposes. As of the date of this statement, none of the
Filing Persons has any plan or proposal which relates to or would result in any
of the actions set forth in parts (a) through (j) of Item 4 of Schedule 13D,
other than in connection with the Registration Rights Agreement, the
Underwriting Agreements and the Custody Agreements, each as defined and
described in Item 6 below.
Each Filing Person expects to evaluate on an ongoing basis the
Company's financial condition, business operations and prospects, the market
price of the Common Stock, conditions in the securities markets generally,
general economic and industry conditions and other factors. Accordingly, each
Filing Person reserves the right to change its plans and intentions at any time,
as it deems appropriate. In particular, each Filing Person may, subject to the
restrictions discussed in Item 6 below and the restrictions contained in the
Securities Act of 1933 (the "Securities Act"), at any time and from time to time
acquire additional shares of Common Stock or securities convertible or
exchangeable for Common Stock in public or private transactions; dispose of
shares of Common Stock or other securities in public or private transactions;
and/or enter into privately negotiated derivative transactions with
institutional counterparties to hedge the market risk of some or all of its
positions in the Common Stock or other securities. Any such transactions may be
effected at any time and from time to time. To the knowledge of each Filing
Person, each of the persons listed on Schedules I, II-A and II-B hereto may make
the same evaluation and may reserve the same rights.
Item 5. Interest in Securities of the Issuer.
(a) As of May 13, 1997, GS Capital beneficially owned, and GS Advisors
may be deemed to beneficially own, an aggregate of 2,107,621 shares of Common
Stock, representing approximately 7.3% of the shares of Common Stock reported to
be outstanding as of May 1, 1997 (as reported in the Company's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1997 (the "Company's 10-Q")).
As of May 13, 1997, Stone Street beneficially owned an aggregate of
28,396 shares of Common Stock representing approximately 0.1% of the shares of
Common Stock reported to be outstanding as of May 1, 1997 (as reported in the
Company's 10-Q).
As of May 13, 1997, Bridge Street beneficially owned an aggregate of
17,110.5 shares of Common Stock, representing approximately 0.1% of the shares
of Common Stock reported to be outstanding as of May 1, 1997 (as reported in the
Company's 10-Q).
As of May 13, 1997, Performance may be deemed to beneficially own an
aggregate of 45,506.5 shares of Common Stock, which are beneficially owned by
Stone Street and Bridge Street as described above, representing approximately
0.2% of the
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<PAGE>
shares of Common Stock reported to be outstanding as of May 1, 1997 (as reported
in the Company's 10-Q).
As of May 13, 1997, GS may be deemed to beneficially own an aggregate
of 2,243,378 shares of Common Stock, including (i) the 2,153,127.5 shares of
Common Stock beneficially owned by the Limited Partnerships described above, and
(ii) the 90,250 shares of Common Stock held in Managed Accounts, representing in
the aggregate approximately 7.7% of the Common Stock reported to be outstanding
as of May 1, 1997 (as reported in the Company's 10-Q).
As of May 13, 1997, GS Group may be deemed to beneficially own an
aggregate of 2,243,378 shares of Common Stock, including (i) the 90,250 shares
of Common Stock held in Managed Accounts and (ii) the 2,153,127.5 shares of
Common Stock beneficially owned by the Limited Partnerships, representing in the
aggregate approximately 7.7% of the shares of Common Stock reported to be
outstanding as of May 1, 1997 (as reported in the Company's 10-Q).
GS Group and GS disclaim beneficial ownership of (i) the shares of
Common Stock beneficially owned by the Limited Partnerships to the extent of
partnership interests in the Limited Partnerships held by persons other than GS
Group, GS or their affiliates and (ii) the shares of Common Stock held in
Managed Accounts.
None of the Filing Persons beneficially owns any shares of Common Stock
as of May 13, 1997 other than as set forth herein.
(b) Each Filing Person shares the power to vote or direct the vote and
to dispose or direct the disposition of shares of Common Stock beneficially
owned by such Filing Person as indicated in the second through eighth pages of
this filing.
(c) Except as set forth in Item 3 and Schedule IV and except, with
respect to GS, in its capacity as an underwriter in the IPO (as further
described in Item 6), no transactions in the Common Stock were effected by the
Filing Persons or, to their knowledge, any of the persons listed on Schedules I,
II-A or II-B hereto, during the past 60 days. Schedule IV sets forth
transactions in the Common Stock which have been effected by GS during the
period from March 1, 1997 through May 13, 1997. The sale of 434,045 shares of
Common Stock and 1,120,551 Warrants by the Limited Partnerships, described in
Item 3, were made pursuant to the Underwriting Agreements for cash. The
purchases by GS set forth on Schedule IV were made in the ordinary course of
business for the benefit of the Managed Accounts and in certain ordinary course
trading activities related to the underwriting of the IPO. Except where
otherwise specified on Schedule IV, all of these transactions were effected in
the over-the-counter market.
(d) Except in accordance with the Custody Agreements, as described in
Item 6 below, no other person is known by any Filing Person to have the right to
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<PAGE>
receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, any shares of Common Stock beneficially owned by any Filing
Person.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
1. The Limited Partnerships are parties to a Registration Rights
Agreement with the Company, dated as of October 9, 1992, as amended by Amendment
No. 1 thereto, dated as of June 5, 1995 (as so amended, the "Registration Rights
Agreement"). Pursuant to the Registration Rights Agreement, the Limited
Partnerships have the ability to require (a "Demand") the Company to register
any or all of the Common Stock held by them in a public offering pursuant to the
Securities Act. The Limited Partnerships have the right to make two Demands plus
an additional Demand in certain circumstances. Demand registrations are subject
to the right of the managing underwriter of the related offering to restrict the
size of the registration if the number of shares requested to be sold cannot be
sold within a price range acceptable to the selling stockholders. Pursuant to
the Registration Rights Agreement, the Limited Partnerships also have the right
to "piggyback" or include their Common Stock in any registration of Common Stock
made by the Company, subject to the right of the managing underwriter to
restrict the size of the registration if the number of shares requested to be
sold by the piggyback stockholders would have an adverse effect on the offering.
Expenses, other than underwriters discounts and commissions, incurred
in connection with such Demand or piggyback registration pursuant to the
Registration Rights Agreement are to be paid by the Company. The Company also
has agreed to indemnify the Limited Partnerships against certain liabilities,
including those arising under the Securities Act.
The foregoing description of the Registration Rights Agreement is
subject to, and qualified in its entirety by reference to, the Registration
Rights Agreement, which is filed as an exhibit to this Schedule 13D.
2. In connection with the IPO, the Limited Partnerships entered into an
Underwriting Agreement, dated April 17, 1997 (the "U.S. Underwriting
Agreement"), among the Company, Essex Group, Inc. ("Essex"), the selling
stockholders listed in Schedule II thereto (the "Selling Stockholders") and GS,
Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation and
Lehman Brothers Inc., as representatives of the several underwriters listed in
Schedule I thereto (the "U.S. Underwriters"), and an Underwriting Agreement,
dated April 17, 1997 (the "International Underwriting Agreement" and, together
with the U.S. Underwriting Agreement, the "Underwriting Agreements"), among the
Company, Essex, the Selling Stockholders and Goldman Sachs
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International, Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities
Corporation and Lehman Brothers International (Europe), as representatives of
the several underwriters listed in Schedule I thereto (the "International
Underwriters" and, together with the U.S. Underwriters, the "Underwriters"). The
Underwriting Agreements provide for purchases by the Underwriters from the
Company and the Selling Stockholders of 4,287,279 shares of Common Stock, at a
purchase price per share of $15.98, and 2,203,506 Warrants, at a purchase price
per Warrant of $10.6077684, and up to an additional 691,784 shares of Common
Stock and 257,175 Warrants, at the same respective purchase prices, for the
purposes of covering over-allotments. The Underwriters exercised the
over-allotment options in part, purchasing an additional 639,007 shares of
Common Stock and 237,556 Warrants. The Underwriting Agreements contain standard
terms and conditions, including representations, warranties and indemnity
provisions. Pursuant to the Underwriting Agreements, GS purchased an aggregate
of 985,472 shares of Common Stock and 488,318 Warrants and Goldman Sachs
International, an English unlimited company, purchased 315,283 shares of Common
Stock and 156,229 Warrants (including, in each case, shares of Common Stock and
Warrants purchased pursuant to the exercise of the Underwriters' over-allotment
options).
Pursuant to the Underwriting Agreements and to Lock-Up Agreements (the
"Lock-Up Agreements") between certain stockholders of the Company, the Company
and the Underwriters, the Limited Partnerships and certain other stockholders of
the Company agreed that prior to October 15, 1997, they would not offer, sell,
contract to sell, grant any option to sell, transfer or otherwise dispose of,
directly or indirectly, shares of Common Stock, securities substantially similar
to the Common Stock, or securities exchangeable for or convertible into shares
of Common Stock or any substantially similar security without the prior written
consent of GS. Also pursuant to the Underwriting Agreements, the Company has
agreed that prior to October 15, 1997, it will not offer, sell, contract to
sell, grant any option to sell, transfer or otherwise dispose of, directly or
indirectly, or file a registration statement relating to, shares of Common
Stock, securities substantially similar to the Common Stock, or securities
exchangeable for or convertible into shares of Common Stock or any substantially
similar security (other than up to 1,300,000 shares of Common Stock that may be
issued in connection with acquisitions and other than pursuant to employee stock
option plans existing, or upon the conversion or exchange of convertible or
exchangeable securities outstanding, on April 17, 1997) without the prior
written consent of GS.
The foregoing description of the Underwriting Agreements is subject to,
and qualified in its entirety by reference to, the Underwriting Agreements,
which are filed as exhibits to this Schedule 13D. The foregoing description of
the Lock-Up Agreements is subject to, and qualified in its entirety by reference
to, the form of Lock-Up Agreement, which is filed as an exhibit to this Schedule
13D.
-15-
<PAGE>
3. In connection with the IPO, each of the Limited Partnerships entered
into a Custody Agreement, dated April 17, 1997 (collectively, the "Custody
Agreements"), with The Bank of New York, as Custodian (the "Custodian"),
pursuant to which The Bank of New York was given custody of certain shares of
Class A Common Stock and Warrants owned by the Limited Partnership and was
authorized and instructed to effect certain transfers of and transactions
relating to such shares and warrants in order to facilitate the IPO. All such
transfers and transactions are completed and the Limited Partnerships expect the
prompt release of the 1,753,127.5 shares of Common Stock held by the Custodian
pursuant to the Custody Agreements.
The foregoing description of the Custody Agreements is subject to, and
qualified in its entirety by reference to, the form of Custody Agreement, which
is filed as an exhibit to this Schedule 13D.
Except as described in this Schedule 13D, none of the Filing Persons
or, to the knowledge of the Filing Persons, any of the persons listed on
Schedules I, II-A or II-B hereto is a party to any contract, arrangement,
understanding or relationship with respect to any securities of the Company.
Item 7. Material to be filed as Exhibits.
(1) Joint Filing Agreement.
(2) Registration Rights Agreement.
(3) U.S. Underwriting Agreement.
(4) International Underwriting Agreement.
(5) Form of Lock-Up Agreement.
(6) Form of Custody Agreement.
-16-
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Dated: May 23, 1997
GOLDMAN, SACHS & CO.
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: Managing Director
THE GOLDMAN SACHS GROUP, L.P.
By: The Goldman Sachs Corporation,
its general partner
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: Executive Vice President
GS ADVISORS, L.P.
By: GS Advisors, Inc., its general partner
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: President
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: President
STONE STREET FUND 1992, L.P.
By: Stone Street Performance Corp.,
its general partner
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: Vice President
-17-
<PAGE>
BRIDGE STREET FUND 1992, L.P.
By: Stone Street Performance Corp.,
its managing general partner
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: Vice President
STONE STREET PERFORMANCE CORP.
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: Vice President
-18-
<PAGE>
SCHEDULE I
The name of each director and of each member of the executive committee
of The Goldman Sachs Corporation and The Goldman, Sachs & Co. L.L.C. and of each
member of the executive committee of The Goldman Sachs Group, L.P. and Goldman,
Sachs & Co. is set forth below.
The business address of each person listed below except John A. Thain
and John L. Thornton is 85 Broad Street, New York, NY 10004. The business
address of John A. Thain and John L. Thornton is 133 Fleet Street, London EC4A
2BB, England. Each person is a citizen of the United States of America. The
present principal occupation or employment of each of the listed persons is as a
managing director of Goldman, Sachs & Co. or another Goldman Sachs operating
entity and as a member of the executive committee.
Jon Z. Corzine
Henry M. Paulson, Jr.
Roy J. Zuckerberg
Robert J. Hurst
John A. Thain
John L. Thornton
-19-
<PAGE>
SCHEDULE II-A
The name, position and present principal occupation of each director
and executive officer of GS Advisors, Inc., the sole general partner of GS
Advisors, L.P., which is the sole general partner of GS Capital Partners, L.P.,
are set forth below.
The business address for all the executive officers and directors
listed below except Henry Cornell is 85 Broad Street, New York, New York 10004.
The business address of Henry Cornell is 3 Garden Road, Hong Kong.
All executive officers and directors listed below are United States
citizens.
Name Position Present Principal Occupation
- ------------------- ------------------------ ----------------------------
Richard A. Friedman Director/President Managing Director of
Goldman, Sachs & Co.
Terence M. O'Toole Director/Vice President Managing Director of
Goldman, Sachs & Co.
Carla H. Skodinski Vice President/Secretary Vice President of Goldman,
Sachs & Co.
Elizabeth S. Cogan Treasurer Vice President of Goldman,
Sachs & Co.
Joseph H. Gleberman Director/Vice President Managing Director of
Goldman, Sachs & Co.
Henry Cornell Vice President Managing Director of
Goldman Sachs (Asia) L.L.C.
Barry S. Volpert Director/Vice President Managing Director of
Goldman, Sachs & Co.
Eve M. Gerriets Vice President/ Vice President of Goldman,
Assistant Secretary Sachs & Co.
David J. Greenwald Assistant Secretary Vice President of Goldman,
Sachs & Co.
C. Douglas Fuge Assistant Treasurer Vice President of Goldman,
Sachs & Co.
-20-
<PAGE>
SCHEDULE II-B
The name, position and present principal occupation of each director
and executive officer of Stone Street Performance Corp., the sole general
partner of Stone Street Fund 1992, L.P. and the sole managing general partner of
Bridge Street Fund 1992, L.P., are set forth below.
The business address for each of the executive officers and directors
listed below is 85 Broad Street, New York, New York 10004.
All executive officers and directors listed below are United States
citizens.
Name Position Present Principal Occupation
- ------------------- ------------------------ ----------------------------
Richard A. Friedman Director/Vice President Managing Director of Goldman,
Sachs & Co.
Avi M. Nash Director/Vice President Managing Director of Goldman,
Sachs & Co.
Jeffrey B. Goldenberg Director/Vice President Managing Director of Goldman,
Sachs & Co.
William J. McMahon Director/Vice President Vice President of Goldman,
Sachs & Co.
Dinakar Singh Director/Vice President Vice President of Goldman,
Sachs & Co.
Jonathan L. Kolatch Director/Vice President Managing Director of Goldman,
Sachs & Co.
Sanjeev K. Mehra Director/Vice President Managing Director of Goldman,
Sachs & Co.
Eric M. Mindich Director/Vice President/ Managing Director of Goldman,
Treasurer Sachs & Co.
Peter G. Sachs Director/Vice President Limited Partner of The
Goldman Sachs Group, L.P.
Glenn R. Fuhrman Director/Vice President Vice President of Goldman,
Sachs & Co.
Peter M. Sacerdote Director/Chairman/C.E.O./ Limited Partner of The
President Goldman Sachs Group, L.P.
David J. Greenwald Vice President Vice President of Goldman,
Sachs & Co.
Carla H. Skodinski Vice President/Secretary Vice President of Goldman,
Sachs & Co.
Esta E. Stecher Vice President Managing Director of Goldman,
Sachs & Co.
Richard A. Yacenda Vice President Vice President of Goldman,
Sachs & Co.
-21-
<PAGE>
SCHEDULE III
In settlement of Securities and Exchange Commission Administrative
Proceeding File No. 3-7646 In the Matter of the Distribution of Securities
Issued by Certain Government Sponsored Enterprises, Goldman, Sachs & Co. (the
"Firm"), along with numerous other securities firms, without admitting or
denying any of the findings of the Securities and Exchange Commission (the
"SEC") consented to the entry of an Order, dated January 16, 1992. The SEC found
that the Firm, in connection with its participation in the primary distributions
of certain unsecured debt securities issued by Government Sponsored Enterprises
("GSEs"), made and kept certain records that did not accurately reflect the
Firm's customers' orders for GSEs' securities and/or offers, purchases or sales
by the Firm of the GSEs' securities effected by the Firm in violation of Section
17(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and 17 C.F.R. Sections 240.17a-3 and 240.17a-4.
The Firm was ordered to cease and desist from committing or causing
future violations of the aforementioned sections of the Exchange Act in
connection with any primary distributions of unsecured debt securities issued by
the GSEs, pay a civil money penalty to the United States Treasury in the amount
of $100,000 and maintain policies and procedures reasonably designed to ensure
the Firm's future compliance with the aforementioned sections of the Exchange
Act in connection with any primary distributions of unsecured debt securities
issued by the GSEs.
In Securities and Exchange Commission Administrative Proceeding File
No. 3-8282 In the Matter of Goldman, Sachs & Co., the Firm, without admitting
or denying any of the SEC's allegations, settled administrative proceedings
involving alleged books and records and supervisory violations relating to
eleven trades of U.S. Treasury securities in the secondary markets in 1985 and
1986. The SEC alleged that the Firm had failed to maintain certain records
required pursuant to Section 17(a) of the Exchange Act and had also failed to
supervise activities relating to the aforementioned trades in violation of
Section 15(b)(4)(E) of the Exchange Act.
The Firm was ordered to cease and desist from committing or causing any
violation of the aforementioned sections of the Exchange Act, pay a civil money
penalty to the SEC in the amount of $250,000 and establish policies and
procedures reasonably designed to assure compliance with Section 17(a) of the
Exchange Act and Rules 17a-3 and 17a-4 thereunder.
-22-
<PAGE>
SCHEDULE IV
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0418-800316-12 2,000 17 17-Apr-97 23-Apr-97
0424-001372-12 2,000 17.875 24-Apr-97 29-Apr-97
0418-800021-12 1,000 17 17-Apr-97 23-Apr-97
0501-001117-12 1,000 18.25 1-May-97 6-May-97
0423-800005-12 250 17 17-Apr-97 23-Apr-97
0418-800056-12 1,000 17 17-Apr-97 23-Apr-97
0418-800057-12 2,000 17 17-Apr-97 23-Apr-97
0418-800025-12 1,000 17 17-Apr-97 23-Apr-97
0501-001115-12 1,000 18.25 1-May-97 6-May-97
0421-800006-12 2,000 17 17-Apr-97 23-Apr-97
0421-800042-12 12,000 17 17-Apr-97 23-Apr-97
0421-800043-12 8,000 17 17-Apr-97 23-Apr-97
0421-800120-12 3,000 17 17-Apr-97 23-Apr-97
0513-143286-12 3,000 19.5 13-May-97 16-May-97
0423-800001-12 3,000 17 17-Apr-97 23-Apr-97
0513-143285-12 3,000 19.375 13-May-97 16-May-97
0421-800117-12 7,500 17 17-Apr-97 23-Apr-97
0425-143130-12 2,900 18.125 25-Apr-97 30-Apr-97
0501-143100-12 4,600 18.25 1-May-97 6-May-97
0418-800187-12 1,000 17 17-Apr-97 23-Apr-97
0430-206173-12 1,000 18.125 30-Apr-97 5-May-97
0418-800231-12 2,800 17 17-Apr-97 23-Apr-97
0421-999753-12 1,800 17 17-Apr-97 23-Apr-97
0418-800228-12 1,400 17 17-Apr-97 23-Apr-97
0418-800230-12 3,600 17 17-Apr-97 23-Apr-97
0418-800232-12 3,900 17 17-Apr-97 23-Apr-97
0418-800229-12 1,500 17 17-Apr-97 23-Apr-97
0418-800235-12 1,900 17 17-Apr-97 23-Apr-97
0418-800237-12 700 17 17-Apr-97 23-Apr-97
0418-800227-12 1,100 17 17-Apr-97 23-Apr-97
0421-800053-12 1,000 17 17-Apr-97 23-Apr-97
0418-800308-12 1,000 17 17-Apr-97 23-Apr-97
0418-800236-12 1,500 17 17-Apr-97 23-Apr-97
0421-800013-12 1,000 17 17-Apr-97 23-Apr-97
0418-274310-12 2,000 17.125 18-Apr-97 23-Apr-97
0430-999554-12 3,000 17.75 29-Apr-97 2-May-97
0423-800008-12 2,000 17 17-Apr-97 23-Apr-97
0424-274272-12 2,000 17.904 24-Apr-97 29-Apr-97
0422-800047-12 4,000 17 17-Apr-97 23-Apr-97
0509-274033-12 4,000 18.625 9-May-97 14-May-97
0425-800026-12 7,000 17 17-Apr-97 23-Apr-97
-23-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0513-274211-12 7,000 19.625 13-May-97 16-May-97
0428-999521-12 2,500 17 17-Apr-97 23-Apr-97
0513-274212-12 2,500 19.625 13-May-97 16-May-97
0428-999520-12 3,000 17 17-Apr-97 23-Apr-97
0430-274159-12 3,000 17.625 30-Apr-97 5-May-97
0423-800010-12 1,000 17 17-Apr-97 23-Apr-97
0423-800013-12 1,000 17 17-Apr-97 23-Apr-97
0425-800024-12 2,500 17 17-Apr-97 23-Apr-97
0513-274213-12 2,500 19.625 13-May-97 16-May-97
0421-800084-12 1,000 17 17-Apr-97 23-Apr-97
0418-800207-12 6,500 17 17-Apr-97 23-Apr-97
0423-286018-12 6,500 17.375 23-Apr-97 28-Apr-97
0418-800209-12 1,500 17 17-Apr-97 23-Apr-97
0501-286046-12 1,500 18.375 1-May-97 6-May-97
0418-800049-12 2,000 17 17-Apr-97 23-Apr-97
0418-800046-12 2,000 17 17-Apr-97 23-Apr-97
0418-800045-12 2,000 17 17-Apr-97 23-Apr-97
0418-800183-12 1,000 17 17-Apr-97 23-Apr-97
0430-304062-12 1,000 17.625 30-Apr-97 5-May-97
0418-800042-12 2,000 17 17-Apr-97 23-Apr-97
0418-800041-12 2,000 17 17-Apr-97 23-Apr-97
0418-800226-12 1,000 17 17-Apr-97 23-Apr-97
0513-304225-12 3,000 19.625 13-May-97 16-May-97*
0418-800162-12 1,500 17 17-Apr-97 23-Apr-97
0430-304077-12 1,500 18 30-Apr-97 5-May-97
0418-800181-12 2,000 17 17-Apr-97 23-Apr-97
0430-304121-12 2,000 18 30-Apr-97 5-May-97
0418-800156-12 500 17 17-Apr-97 23-Apr-97
0430-304079-12 500 18 30-Apr-97 5-May-97
0418-800159-12 1,000 17 17-Apr-97 23-Apr-97
0430-304080-12 1,000 18 30-Apr-97 5-May-97
0418-333555-12 2,000 17 17-Apr-97 23-Apr-97
0418-333539-12 2,000 17 17-Apr-97 23-Apr-97
5425-323236-12 2,000 18 25-Apr-97 30-Apr-97
0418-333554-12 5,000 17 17-Apr-97 23-Apr-97
7430-333991-12 159,340 16.4 17-Apr-97 23-Apr-97
0421-800012-13 119 17 17-Apr-97 23-Apr-97
0418-800059-13 200 17 17-Apr-97 23-Apr-97
0424-800003-13 200 17 17-Apr-97 23-Apr-97
0418-800167-13 250 17 17-Apr-97 23-Apr-97
0423-800005-13 250 17 17-Apr-97 23-Apr-97
- --------------
* This transaction was effected on the New York Stock Exchange.
-24-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0418-800249-13 380 17 17-Apr-97 23-Apr-97
0418-800250-13 450 17 17-Apr-97 23-Apr-97
0418-800246-13 490 17 17-Apr-97 23-Apr-97
0418-800022-13 500 17 17-Apr-97 23-Apr-97
0418-800051-13 500 17 17-Apr-97 23-Apr-97
0418-800156-13 500 17 17-Apr-97 23-Apr-97
0418-800158-13 500 17 17-Apr-97 23-Apr-97
0418-800173-13 500 17 17-Apr-97 23-Apr-97
0418-800174-13 500 17 17-Apr-97 23-Apr-97
0418-800255-13 500 17 17-Apr-97 23-Apr-97
0418-800256-13 500 17 17-Apr-97 23-Apr-97
0418-800296-13 500 17 17-Apr-97 23-Apr-97
0421-800007-13 500 17 17-Apr-97 23-Apr-97
0421-800068-13 500 17 17-Apr-97 23-Apr-97
0418-800245-13 540 17 17-Apr-97 23-Apr-97
0418-800285-13 600 17 17-Apr-97 23-Apr-97
0421-800040-13 600 17 17-Apr-97 23-Apr-97
0418-800247-13 620 17 17-Apr-97 23-Apr-97
0418-800248-13 620 17 17-Apr-97 23-Apr-97
0418-800086-13 700 17 17-Apr-97 23-Apr-97
0418-800237-13 700 17 17-Apr-97 23-Apr-97
0418-800266-13 700 17 17-Apr-97 23-Apr-97
0422-800013-13 750 17 17-Apr-97 23-Apr-97
0422-800016-13 750 17 17-Apr-97 23-Apr-97
0418-800058-13 800 17 17-Apr-97 23-Apr-97
0418-800079-13 800 17 17-Apr-97 23-Apr-97
0418-800089-13 800 17 17-Apr-97 23-Apr-97
0418-800297-13 890 17 17-Apr-97 23-Apr-97
0418-800085-13 900 17 17-Apr-97 23-Apr-97
0418-800291-13 910 17 17-Apr-97 23-Apr-97
0418-800018-13 1,000 17 17-Apr-97 23-Apr-97
0418-800021-13 1,000 17 17-Apr-97 23-Apr-97
0418-800024-13 1,000 17 17-Apr-97 23-Apr-97
0418-800025-13 1,000 17 17-Apr-97 23-Apr-97
0418-800052-13 1,000 17 17-Apr-97 23-Apr-97
0418-800053-13 1,000 17 17-Apr-97 23-Apr-97
0418-800054-13 1,000 17 17-Apr-97 23-Apr-97
0418-800056-13 1,000 17 17-Apr-97 23-Apr-97
0418-800105-13 1,000 17 17-Apr-97 23-Apr-97
0418-800126-13 1,000 17 17-Apr-97 23-Apr-97
0418-800127-13 1,000 17 17-Apr-97 23-Apr-97
-25-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0418-800134-13 1,000 17 17-Apr-97 23-Apr-97
0418-800136-13 1,000 17 17-Apr-97 23-Apr-97
0418-800138-13 1,000 17 17-Apr-97 23-Apr-97
0418-800143-13 1,000 17 17-Apr-97 23-Apr-97
0418-800144-13 1,000 17 17-Apr-97 23-Apr-97
0418-800145-13 1,000 17 17-Apr-97 23-Apr-97
0418-800146-13 1,000 17 17-Apr-97 23-Apr-97
0418-800147-13 1,000 17 17-Apr-97 23-Apr-97
0418-800148-13 1,000 17 17-Apr-97 23-Apr-97
0418-800157-13 1,000 17 17-Apr-97 23-Apr-97
0418-800159-13 1,000 17 17-Apr-97 23-Apr-97
0418-800170-13 1,000 17 17-Apr-97 23-Apr-97
0418-800171-13 1,000 17 17-Apr-97 23-Apr-97
0418-800172-13 1,000 17 17-Apr-97 23-Apr-97
0418-800183-13 1,000 17 17-Apr-97 23-Apr-97
0418-800186-13 1,000 17 17-Apr-97 23-Apr-97
0418-800187-13 1,000 17 17-Apr-97 23-Apr-97
0418-800188-13 1,000 17 17-Apr-97 23-Apr-97
0418-800189-13 1,000 17 17-Apr-97 23-Apr-97
0418-800190-13 1,000 17 17-Apr-97 23-Apr-97
0418-800216-13 1,000 17 17-Apr-97 23-Apr-97
0418-800217-13 1,000 17 17-Apr-97 23-Apr-97
0418-800226-13 1,000 17 17-Apr-97 23-Apr-97
0418-800254-13 1,000 17 17-Apr-97 23-Apr-97
0418-800257-13 1,000 17 17-Apr-97 23-Apr-97
0418-800258-13 1,000 17 17-Apr-97 23-Apr-97
0418-800268-13 1,000 17 17-Apr-97 23-Apr-97
0418-800307-13 1,000 17 17-Apr-97 23-Apr-97
0418-800308-13 1,000 17 17-Apr-97 23-Apr-97
0418-800319-13 1,000 17 17-Apr-97 23-Apr-97
0418-800320-13 1,000 17 17-Apr-97 23-Apr-97
0418-800321-13 1,000 17 17-Apr-97 23-Apr-97
0421-800001-13 1,000 17 17-Apr-97 23-Apr-97
0421-800008-13 1,000 17 17-Apr-97 23-Apr-97
0421-800013-13 1,000 17 17-Apr-97 23-Apr-97
0421-800037-13 1,000 17 17-Apr-97 23-Apr-97
0421-800038-13 1,000 17 17-Apr-97 23-Apr-97
0421-800053-13 1,000 17 17-Apr-97 23-Apr-97
0421-800056-13 1,000 17 17-Apr-97 23-Apr-97
0421-800057-13 1,000 17 17-Apr-97 23-Apr-97
0421-800061-13 1,000 17 17-Apr-97 23-Apr-97
-26-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0421-800083-13 1,000 17 17-Apr-97 23-Apr-97
0421-800084-13 1,000 17 17-Apr-97 23-Apr-97
0421-800085-13 1,000 17 17-Apr-97 23-Apr-97
0421-800086-13 1,000 17 17-Apr-97 23-Apr-97
0421-800087-13 1,000 17 17-Apr-97 23-Apr-97
0422-800011-13 1,000 17 17-Apr-97 23-Apr-97
0422-800012-13 1,000 17 17-Apr-97 23-Apr-97
0422-800014-13 1,000 17 17-Apr-97 23-Apr-97
0422-800015-13 1,000 17 17-Apr-97 23-Apr-97
0422-800018-13 1,000 17 17-Apr-97 23-Apr-97
0422-800019-13 1,000 17 17-Apr-97 23-Apr-97
0422-800045-13 1,000 17 17-Apr-97 23-Apr-97
0422-800051-13 1,000 17 17-Apr-97 23-Apr-97
0422-800056-13 1,000 17 17-Apr-97 23-Apr-97
0422-800059-13 1,000 17 17-Apr-97 23-Apr-97
0422-800068-13 1,000 17 17-Apr-97 23-Apr-97
0423-800010-13 1,000 17 17-Apr-97 23-Apr-97
0423-800011-13 1,000 17 17-Apr-97 23-Apr-97
0423-800012-13 1,000 17 17-Apr-97 23-Apr-97
0423-800013-13 1,000 17 17-Apr-97 23-Apr-97
0418-800227-13 1,100 17 17-Apr-97 23-Apr-97
0418-800087-13 1,200 17 17-Apr-97 23-Apr-97
0418-800286-13 1,200 17 17-Apr-97 23-Apr-97
0421-800041-13 1,200 17 17-Apr-97 23-Apr-97
0421-800099-13 1,300 17 17-Apr-97 23-Apr-97
0418-800228-13 1,400 17 17-Apr-97 23-Apr-97
0418-800299-13 1,400 17 17-Apr-97 23-Apr-97
0418-800023-13 1,500 17 17-Apr-97 23-Apr-97
0418-800160-13 1,500 17 17-Apr-97 23-Apr-97
0418-800161-13 1,500 17 17-Apr-97 23-Apr-97
0418-800162-13 1,500 17 17-Apr-97 23-Apr-97
0418-800163-13 1,500 17 17-Apr-97 23-Apr-97
0418-800166-13 1,500 17 17-Apr-97 23-Apr-97
0418-800194-13 1,500 17 17-Apr-97 23-Apr-97
0418-800195-13 1,500 17 17-Apr-97 23-Apr-97
0418-800197-13 1,500 17 17-Apr-97 23-Apr-97
0418-800200-13 1,500 17 17-Apr-97 23-Apr-97
0418-800203-13 1,500 17 17-Apr-97 23-Apr-97
0418-800205-13 1,500 17 17-Apr-97 23-Apr-97
0418-800209-13 1,500 17 17-Apr-97 23-Apr-97
0418-800210-13 1,500 17 17-Apr-97 23-Apr-97
-27-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0418-800214-13 1,500 17 17-Apr-97 23-Apr-97
0418-800220-13 1,500 17 17-Apr-97 23-Apr-97
0418-800229-13 1,500 17 17-Apr-97 23-Apr-97
0418-800236-13 1,500 17 17-Apr-97 23-Apr-97
0418-800252-13 1,500 17 17-Apr-97 23-Apr-97
0418-800253-13 1,500 17 17-Apr-97 23-Apr-97
0418-800294-13 1,500 17 17-Apr-97 23-Apr-97
0421-800066-13 1,500 17 17-Apr-97 23-Apr-97
0421-800126-13 1,500 17 17-Apr-97 23-Apr-97
0421-800127-13 1,500 17 17-Apr-97 23-Apr-97
0422-800060-13 1,500 17 17-Apr-97 23-Apr-97
0422-800061-13 1,500 17 17-Apr-97 23-Apr-97
0422-800069-13 1,500 17 17-Apr-97 23-Apr-97
0418-800090-13 1,800 17 17-Apr-97 23-Apr-97
0418-800234-13 1,800 17 17-Apr-97 23-Apr-97
0418-800244-13 1,800 17 17-Apr-97 23-Apr-97
0418-800235-13 1,900 17 17-Apr-97 23-Apr-97
0418-800273-13 1,900 17 17-Apr-97 23-Apr-97
0418-800284-13 1,900 17 17-Apr-97 23-Apr-97
0418-800300-13 1,900 17 17-Apr-97 23-Apr-97
0418-800004-13 2,000 17 17-Apr-97 23-Apr-97
0418-800041-13 2,000 17 17-Apr-97 23-Apr-97
0418-800042-13 2,000 17 17-Apr-97 23-Apr-97
0418-800043-13 2,000 17 17-Apr-97 23-Apr-97
0418-800044-13 2,000 17 17-Apr-97 23-Apr-97
0418-800045-13 2,000 17 17-Apr-97 23-Apr-97
0418-800046-13 2,000 17 17-Apr-97 23-Apr-97
0418-800047-13 2,000 17 17-Apr-97 23-Apr-97
0418-800048-13 2,000 17 17-Apr-97 23-Apr-97
0418-800049-13 2,000 17 17-Apr-97 23-Apr-97
0418-800050-13 2,000 17 17-Apr-97 23-Apr-97
0418-800055-13 2,000 17 17-Apr-97 23-Apr-97
0418-800057-13 2,000 17 17-Apr-97 23-Apr-97
0418-800060-13 2,000 17 17-Apr-97 23-Apr-97
0418-800104-13 2,000 17 17-Apr-97 23-Apr-97
0418-800106-13 2,000 17 17-Apr-97 23-Apr-97
0418-800121-13 2,000 17 17-Apr-97 23-Apr-97
0418-800122-13 2,000 17 17-Apr-97 23-Apr-97
0418-800135-13 2,000 17 17-Apr-97 23-Apr-97
0418-800137-13 2,000 17 17-Apr-97 23-Apr-97
0418-800139-13 2,000 17 17-Apr-97 23-Apr-97
-28-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0418-800140-13 2,000 17 17-Apr-97 23-Apr-97
0418-800141-13 2,000 17 17-Apr-97 23-Apr-97
0418-800142-13 2,000 17 17-Apr-97 23-Apr-97
0418-800150-13 2,000 17 17-Apr-97 23-Apr-97
0418-800155-13 2,000 17 17-Apr-97 23-Apr-97
0418-800164-13 2,000 17 17-Apr-97 23-Apr-97
0418-800165-13 2,000 17 17-Apr-97 23-Apr-97
0418-800181-13 2,000 17 17-Apr-97 23-Apr-97
0418-800182-13 2,000 17 17-Apr-97 23-Apr-97
0418-800184-13 2,000 17 17-Apr-97 23-Apr-97
0418-800185-13 2,000 17 17-Apr-97 23-Apr-97
0418-800193-13 2,000 17 17-Apr-97 23-Apr-97
0418-800198-13 2,000 17 17-Apr-97 23-Apr-97
0418-800199-13 2,000 17 17-Apr-97 23-Apr-97
0418-800204-13 2,000 17 17-Apr-97 23-Apr-97
0418-800208-13 2,000 17 17-Apr-97 23-Apr-97
0418-800215-13 2,000 17 17-Apr-97 23-Apr-97
0418-800218-13 2,000 17 17-Apr-97 23-Apr-97
0418-800259-13 2,000 17 17-Apr-97 23-Apr-97
0418-800260-13 2,000 17 17-Apr-97 23-Apr-97
0418-800261-13 2,000 17 17-Apr-97 23-Apr-97
0418-800262-13 2,000 17 17-Apr-97 23-Apr-97
0418-800292-13 2,000 17 17-Apr-97 23-Apr-97
0418-800295-13 2,000 17 17-Apr-97 23-Apr-97
0418-800311-13 2,000 17 17-Apr-97 23-Apr-97
0418-800316-13 2,000 17 17-Apr-97 23-Apr-97
0418-800318-13 2,000 17 17-Apr-97 23-Apr-97
0421-800006-13 2,000 17 17-Apr-97 23-Apr-97
0421-800016-13 2,000 17 17-Apr-97 23-Apr-97
0421-800067-13 2,000 17 17-Apr-97 23-Apr-97
0421-800069-13 2,000 17 17-Apr-97 23-Apr-97
0421-800070-13 2,000 17 17-Apr-97 23-Apr-97
0421-800071-13 2,000 17 17-Apr-97 23-Apr-97
0421-800113-13 2,000 17 17-Apr-97 23-Apr-97
0421-800125-13 2,000 17 17-Apr-97 23-Apr-97
0422-800005-13 2,000 17 17-Apr-97 23-Apr-97
0422-800050-13 2,000 17 17-Apr-97 23-Apr-97
0422-800053-13 2,000 17 17-Apr-97 23-Apr-97
0422-800055-13 2,000 17 17-Apr-97 23-Apr-97
0422-800058-13 2,000 17 17-Apr-97 23-Apr-97
0422-800062-13 2,000 17 17-Apr-97 23-Apr-97
-29-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0422-800064-13 2,000 17 17-Apr-97 23-Apr-97
0422-800066-13 2,000 17 17-Apr-97 23-Apr-97
0423-800008-13 2,000 17 17-Apr-97 23-Apr-97
0418-800081-13 2,100 17 17-Apr-97 23-Apr-97
0418-800082-13 2,100 17 17-Apr-97 23-Apr-97
0418-800287-13 2,100 17 17-Apr-97 23-Apr-97
0418-800298-13 2,100 17 17-Apr-97 23-Apr-97
0418-800091-13 2,200 17 17-Apr-97 23-Apr-97
0418-800092-13 2,200 17 17-Apr-97 23-Apr-97
0418-800243-13 2,200 17 17-Apr-97 23-Apr-97
0418-800290-13 2,200 17 17-Apr-97 23-Apr-97
0421-800011-13 2,381 17 17-Apr-97 23-Apr-97
0418-800270-13 2,400 17 17-Apr-97 23-Apr-97
0421-800104-13 2,400 17 17-Apr-97 23-Apr-97
0418-800001-13 2,500 17 17-Apr-97 23-Apr-97
0418-800002-13 2,500 17 17-Apr-97 23-Apr-97
0418-800065-13 2,500 17 17-Apr-97 23-Apr-97
0418-800179-13 2,500 17 17-Apr-97 23-Apr-97
0418-800180-13 2,500 17 17-Apr-97 23-Apr-97
0418-800206-13 2,500 17 17-Apr-97 23-Apr-97
0418-800278-13 2,500 17 17-Apr-97 23-Apr-97
0418-800281-13 2,500 17 17-Apr-97 23-Apr-97
0421-800002-13 2,500 17 17-Apr-97 23-Apr-97
0421-800064-13 2,500 17 17-Apr-97 23-Apr-97
0421-800118-13 2,500 17 17-Apr-97 23-Apr-97
0422-800017-13 2,500 17 17-Apr-97 23-Apr-97
0422-800054-13 2,500 17 17-Apr-97 23-Apr-97
0425-800024-13 2,500 17 17-Apr-97 23-Apr-97
0428-999521-13 2,500 17 17-Apr-97 23-Apr-97
0418-800289-13 2,600 17 17-Apr-97 23-Apr-97
0421-800114-13 2,600 17 17-Apr-97 23-Apr-97
0418-800037-13 2,700 17 17-Apr-97 23-Apr-97
0418-800231-13 2,800 17 17-Apr-97 23-Apr-97
0418-800240-13 2,900 17 17-Apr-97 23-Apr-97
0418-800280-13 2,900 17 17-Apr-97 23-Apr-97
0418-800088-13 3,000 17 17-Apr-97 23-Apr-97
0418-800120-13 3,000 17 17-Apr-97 23-Apr-97
0418-800129-13 3,000 17 17-Apr-97 23-Apr-97
0418-800196-13 3,000 17 17-Apr-97 23-Apr-97
0418-800219-13 3,000 17 17-Apr-97 23-Apr-97
0418-800221-13 3,000 17 17-Apr-97 23-Apr-97
-30-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0418-800223-13 3,000 17 17-Apr-97 23-Apr-97
0418-800224-13 3,000 17 17-Apr-97 23-Apr-97
0418-800225-13 3,000 17 17-Apr-97 23-Apr-97
0418-800251-13 3,000 17 17-Apr-97 23-Apr-97
0418-800263-13 3,000 17 17-Apr-97 23-Apr-97
0418-800313-13 3,000 17 17-Apr-97 23-Apr-97
0418-800315-13 3,000 17 17-Apr-97 23-Apr-97
0421-800058-13 3,000 17 17-Apr-97 23-Apr-97
0421-800120-13 3,000 17 17-Apr-97 23-Apr-97
0421-800128-13 3,000 17 17-Apr-97 23-Apr-97
0421-999168-13 3,000 17 17-Apr-97 23-Apr-97
0421-999169-13 3,000 17 17-Apr-97 23-Apr-97
0421-999170-13 3,000 17 17-Apr-97 23-Apr-97
0421-999171-13 3,000 17 17-Apr-97 23-Apr-97
0421-999172-13 3,000 17 17-Apr-97 23-Apr-97
0422-800049-13 3,000 17 17-Apr-97 23-Apr-97
0422-800052-13 3,000 17 17-Apr-97 23-Apr-97
0422-800057-13 3,000 17 17-Apr-97 23-Apr-97
0422-800063-13 3,000 17 17-Apr-97 23-Apr-97
0422-800065-13 3,000 17 17-Apr-97 23-Apr-97
0422-800067-13 3,000 17 17-Apr-97 23-Apr-97
0423-800001-13 3,000 17 17-Apr-97 23-Apr-97
0428-999520-13 3,000 17 17-Apr-97 23-Apr-97
0418-800304-13 3,200 17 17-Apr-97 23-Apr-97
0418-800035-13 3,400 17 17-Apr-97 23-Apr-97
0418-800098-13 3,400 17 17-Apr-97 23-Apr-97
0418-800267-13 3,400 17 17-Apr-97 23-Apr-97
0418-800269-13 3,400 17 17-Apr-97 23-Apr-97
0418-800202-13 3,500 17 17-Apr-97 23-Apr-97
0418-800230-13 3,600 17 17-Apr-97 23-Apr-97
0418-800083-13 3,800 17 17-Apr-97 23-Apr-97
0418-800084-13 3,900 17 17-Apr-97 23-Apr-97
0418-800232-13 3,900 17 17-Apr-97 23-Apr-97
0418-800288-13 3,900 17 17-Apr-97 23-Apr-97
0418-800303-13 3,900 17 17-Apr-97 23-Apr-97
0421-800106-13 3,900 17 17-Apr-97 23-Apr-97
0421-800107-13 3,900 17 17-Apr-97 23-Apr-97
0418-800077-13 4,000 17 17-Apr-97 23-Apr-97
0418-800078-13 4,000 17 17-Apr-97 23-Apr-97
0418-800149-13 4,000 17 17-Apr-97 23-Apr-97
0418-800191-13 4,000 17 17-Apr-97 23-Apr-97
-31-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0418-800201-13 4,000 17 17-Apr-97 23-Apr-97
0421-800033-13 4,000 17 17-Apr-97 23-Apr-97
0421-800052-13 4,000 17 17-Apr-97 23-Apr-97
0421-800123-13 4,000 17 17-Apr-97 23-Apr-97
0421-800124-13 4,000 17 17-Apr-97 23-Apr-97
0422-800047-13 4,000 17 17-Apr-97 23-Apr-97
0418-800117-13 4,100 17 17-Apr-97 23-Apr-97
0424-800001-13 4,100 17 17-Apr-97 23-Apr-97
0418-800264-13 4,300 17 17-Apr-97 23-Apr-97
0418-800275-13 4,500 17 17-Apr-97 23-Apr-97
0418-800233-13 4,800 17 17-Apr-97 23-Apr-97
0418-800064-13 5,000 17 17-Apr-97 23-Apr-97
0418-800118-13 5,000 17 17-Apr-97 23-Apr-97
0418-800175-13 5,000 17 17-Apr-97 23-Apr-97
0418-800176-13 5,000 17 17-Apr-97 23-Apr-97
0418-800177-13 5,000 17 17-Apr-97 23-Apr-97
0421-800044-13 5,000 17 17-Apr-97 23-Apr-97
0421-800045-13 5,000 17 17-Apr-97 23-Apr-97
0421-800059-13 5,000 17 17-Apr-97 23-Apr-97
0421-800060-13 5,000 17 17-Apr-97 23-Apr-97
0421-800079-13 5,000 17 17-Apr-97 23-Apr-97
0421-800080-13 5,000 17 17-Apr-97 23-Apr-97
0421-800081-13 5,000 17 17-Apr-97 23-Apr-97
0421-800122-13 5,000 17 17-Apr-97 23-Apr-97
0422-800046-13 5,000 17 17-Apr-97 23-Apr-97
0421-800100-13 5,100 17 17-Apr-97 23-Apr-97
0418-800097-13 5,400 17 17-Apr-97 23-Apr-97
0418-800241-13 5,400 17 17-Apr-97 23-Apr-97
0421-800108-13 5,600 17 17-Apr-97 23-Apr-97
0418-800242-13 5,700 17 17-Apr-97 23-Apr-97
0421-800112-13 5,700 17 17-Apr-97 23-Apr-97
0421-800115-13 5,800 17 17-Apr-97 23-Apr-97
0418-800301-13 5,900 17 17-Apr-97 23-Apr-97
0418-800116-13 6,000 17 17-Apr-97 23-Apr-97
0418-800192-13 6,000 17 17-Apr-97 23-Apr-97
0418-800222-13 6,000 17 17-Apr-97 23-Apr-97
0421-800119-13 6,000 17 17-Apr-97 23-Apr-97
0418-800062-13 6,500 17 17-Apr-97 23-Apr-97
0418-800207-13 6,500 17 17-Apr-97 23-Apr-97
0418-800271-13 6,900 17 17-Apr-97 23-Apr-97
0418-800113-13 7,000 17 17-Apr-97 23-Apr-97
-32-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0418-800123-13 7,000 17 17-Apr-97 23-Apr-97
0421-800035-13 7,000 17 17-Apr-97 23-Apr-97
0425-800026-13 7,000 17 17-Apr-97 23-Apr-97
0421-800010-13 7,400 17 17-Apr-97 23-Apr-97
0418-800069-13 7,500 17 17-Apr-97 23-Apr-97
0421-800117-13 7,500 17 17-Apr-97 23-Apr-97
0418-800169-13 8,000 17 17-Apr-97 23-Apr-97
0418-800302-13 8,000 17 17-Apr-97 23-Apr-97
0421-800043-13 8,000 17 17-Apr-97 23-Apr-97
0429-800258-13 8,000 17 17-Apr-97 23-Apr-97
0421-800102-13 8,400 17 17-Apr-97 23-Apr-97
0418-800282-13 8,500 17 17-Apr-97 23-Apr-97
0418-800080-13 9,000 17 17-Apr-97 23-Apr-97
0418-800038-13 9,300 17 17-Apr-97 23-Apr-97
0418-800028-13 10,000 17 17-Apr-97 23-Apr-97
0418-800168-13 10,000 17 17-Apr-97 23-Apr-97
0418-800178-13 10,000 17 17-Apr-97 23-Apr-97
0418-800293-13 10,000 17 17-Apr-97 23-Apr-97
0418-800265-13 10,200 17 17-Apr-97 23-Apr-97
0418-800108-13 11,300 17 17-Apr-97 23-Apr-97
0418-800112-13 11,500 17 17-Apr-97 23-Apr-97
0418-800115-13 11,800 17 17-Apr-97 23-Apr-97
0418-800239-13 12,000 17 17-Apr-97 23-Apr-97
0421-800036-13 12,000 17 17-Apr-97 23-Apr-97
0421-800042-13 12,000 17 17-Apr-97 23-Apr-97
0418-800238-13 12,800 17 17-Apr-97 23-Apr-97
0421-800032-13 13,000 17 17-Apr-97 23-Apr-97
0421-800029-13 13,100 17 17-Apr-97 23-Apr-97
0421-800116-13 13,400 17 17-Apr-97 23-Apr-97
0418-800063-13 13,500 17 17-Apr-97 23-Apr-97
0418-800071-13 13,500 17 17-Apr-97 23-Apr-97
0418-800074-13 13,500 17 17-Apr-97 23-Apr-97
0418-800068-13 14,000 17 17-Apr-97 23-Apr-97
0421-800023-13 14,700 17 17-Apr-97 23-Apr-97
0418-800067-13 15,000 17 17-Apr-97 23-Apr-97
0418-800103-13 15,000 17 17-Apr-97 23-Apr-97
0422-800002-13 15,000 17 17-Apr-97 23-Apr-97
0418-800272-13 15,700 17 17-Apr-97 23-Apr-97
0421-800103-13 16,200 17 17-Apr-97 23-Apr-97
0418-800283-13 16,300 17 17-Apr-97 23-Apr-97
0421-800009-13 17,600 17 17-Apr-97 23-Apr-97
-33-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0421-800024-13 17,600 17 17-Apr-97 23-Apr-97
0418-800107-13 18,000 17 17-Apr-97 23-Apr-97
0421-800004-13 20,000 17 17-Apr-97 23-Apr-97
0421-800034-13 20,000 17 17-Apr-97 23-Apr-97
0421-800078-13 20,000 17 17-Apr-97 23-Apr-97
0421-800105-13 20,300 17 17-Apr-97 23-Apr-97
0418-800306-13 20,500 17 17-Apr-97 23-Apr-97
0418-800076-13 22,200 17 17-Apr-97 23-Apr-97
0421-800028-13 24,000 17 17-Apr-97 23-Apr-97
0418-800309-13 25,000 17 17-Apr-97 23-Apr-97
0418-800073-13 26,500 17 17-Apr-97 23-Apr-97
0418-800110-13 30,000 17 17-Apr-97 23-Apr-97
0421-800063-13 30,000 17 17-Apr-97 23-Apr-97
0421-800065-13 30,000 17 17-Apr-97 23-Apr-97
0421-800021-13 30,300 17 17-Apr-97 23-Apr-97
0418-800072-13 30,500 17 17-Apr-97 23-Apr-97
0421-800109-13 30,500 17 17-Apr-97 23-Apr-97
0418-800111-13 32,000 17 17-Apr-97 23-Apr-97
0418-800033-13 33,100 17 17-Apr-97 23-Apr-97
0421-800101-13 33,700 17 17-Apr-97 23-Apr-97
0421-800026-13 34,000 17 17-Apr-97 23-Apr-97
0421-800025-13 34,900 17 17-Apr-97 23-Apr-97
0418-800066-13 35,500 17 17-Apr-97 23-Apr-97
0418-800036-13 36,600 17 17-Apr-97 23-Apr-97
0418-800274-13 39,500 17 17-Apr-97 23-Apr-97
0418-800100-13 40,000 17 17-Apr-97 23-Apr-97
0421-800019-13 40,000 17 17-Apr-97 23-Apr-97
0418-800114-13 46,700 17 17-Apr-97 23-Apr-97
0418-800277-13 49,100 17 17-Apr-97 23-Apr-97
0418-800061-13 50,000 17 17-Apr-97 23-Apr-97
0421-800062-13 50,000 17 17-Apr-97 23-Apr-97
0418-800279-13 51,100 17 17-Apr-97 23-Apr-97
0421-800030-13 51,800 17 17-Apr-97 23-Apr-97
0421-800022-13 53,300 17 17-Apr-97 23-Apr-97
0421-800111-13 65,000 17 17-Apr-97 23-Apr-97
0418-800070-13 66,500 17 17-Apr-97 23-Apr-97
0418-800034-13 66,900 17 17-Apr-97 23-Apr-97
0418-800099-13 71,200 17 17-Apr-97 23-Apr-97
0418-800109-13 71,600 17 17-Apr-97 23-Apr-97
0418-800040-13 72,100 17 17-Apr-97 23-Apr-97
0418-800276-13 74,000 17 17-Apr-97 23-Apr-97
-34-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0421-800020-13 76,800 17 17-Apr-97 23-Apr-97
0421-800027-13 80,300 17 17-Apr-97 23-Apr-97
0421-800110-13 85,700 17 17-Apr-97 23-Apr-97
0422-800004-13 90,000 17 17-Apr-97 23-Apr-97
0421-800098-13 107,700 17 17-Apr-97 23-Apr-97
7501-999947-12 159,340 15.98 17-Apr-97 23-Apr-97
0421-800018-13 160,000 17 17-Apr-97 23-Apr-97
0421-800003-13 165,000 17 17-Apr-97 23-Apr-97
0418-800075-13 185,300 17 17-Apr-97 23-Apr-97
0421-800031-13 190,000 17 17-Apr-97 23-Apr-97
0418-800039-13 227,900 17 17-Apr-97 23-Apr-97
0418-800032-13 250,000 17 17-Apr-97 23-Apr-97
0418-800093-13 575,000 17 17-Apr-97 23-Apr-97
7418-333995-12 1,124,500 15.97 17-Apr-97 23-Apr-97
0422-110002-12 19,338 17 21-Apr-97 24-Apr-97
0421-111479-12 54,800 17 21-Apr-97 24-Apr-97
0418-110918-12 150,000 17.125 18-Apr-97 23-Apr-97
0418-110919-12 562,000 17 18-Apr-97 23-Apr-97
5501-999947-13 159,340 15.98 17-Apr-97 23-Apr-97
5418-333995-13 1,124,500 15.97 17-Apr-97 23-Apr-97
0418-333997-13 97,500 16.4 17-Apr-97 23-Apr-97
5430-333991-13 159,340 16.4 17-Apr-97 23-Apr-97
0418-333996-13 1,027,000 16.4 17-Apr-97 23-Apr-97
0418-333996-12 1,027,000 16.4 17-Apr-97 23-Apr-97
0418-333557-13 1,000 17 17-Apr-97 23-Apr-97
5418-333532-13 1,000 17 17-Apr-97 23-Apr-97
5418-333533-13 1,000 17 17-Apr-97 23-Apr-97
0418-333538-13 2,000 17 17-Apr-97 23-Apr-97
5421-333600-13 2,000 17 17-Apr-97 23-Apr-97
0418-333513-13 3,000 17 17-Apr-97 23-Apr-97
5418-333531-13 4,000 17 17-Apr-97 23-Apr-97
5418-333534-13 4,000 17 17-Apr-97 23-Apr-97
0418-333512-13 5,000 17 17-Apr-97 23-Apr-97
0418-333520-13 5,000 17 17-Apr-97 23-Apr-97
0418-333521-13 5,000 17 17-Apr-97 23-Apr-97
0418-333522-13 5,000 17 17-Apr-97 23-Apr-97
0418-333527-13 5,000 17 17-Apr-97 23-Apr-97
0418-333535-13 5,000 17 17-Apr-97 23-Apr-97
5418-333529-13 5,000 17 17-Apr-97 23-Apr-97
5421-333601-13 5,000 17 17-Apr-97 23-Apr-97
0418-333510-13 6,000 17 17-Apr-97 23-Apr-97
-35-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
0418-333505-13 6,300 17 17-Apr-97 23-Apr-97
0418-333515-13 7,500 17 17-Apr-97 23-Apr-97
0418-333504-13 8,400 17 17-Apr-97 23-Apr-97
0418-333508-13 10,000 17 17-Apr-97 23-Apr-97
0418-333523-13 10,000 17 17-Apr-97 23-Apr-97
0418-333524-13 10,000 17 17-Apr-97 23-Apr-97
0418-333528-13 10,000 17 17-Apr-97 23-Apr-97
0418-333980-13 10,400 17 17-Apr-97 23-Apr-97
0418-333514-13 17,500 17 17-Apr-97 23-Apr-97
0418-333518-13 20,000 17 17-Apr-97 23-Apr-97
0418-333516-13 25,000 17 17-Apr-97 23-Apr-97
0418-333517-13 28,000 17 17-Apr-97 23-Apr-97
0418-333506-13 30,000 17 17-Apr-97 23-Apr-97
0418-333509-13 30,000 17 17-Apr-97 23-Apr-97
0418-333519-13 30,000 17 17-Apr-97 23-Apr-97
0418-333525-13 30,000 17 17-Apr-97 23-Apr-97
0418-333502-13 33,700 17 17-Apr-97 23-Apr-97
0418-333503-13 41,200 17 17-Apr-97 23-Apr-97
0418-333526-13 50,000 17 17-Apr-97 23-Apr-97
0418-333507-13 75,000 17 17-Apr-97 23-Apr-97
0418-333511-13 180,000 17 17-Apr-97 23-Apr-97
0418-333536-13 300,000 17 17-Apr-97 23-Apr-97
0418-333997-12 97,500 16.4 17-Apr-97 23-Apr-97
0418-333546-13 1,000 17 17-Apr-97 23-Apr-97
0421-333503-13 1,000 17 17-Apr-97 23-Apr-97
0421-333506-13 1,000 17 17-Apr-97 23-Apr-97
0421-333507-13 1,000 17 17-Apr-97 23-Apr-97
0421-333508-13 1,000 17 17-Apr-97 23-Apr-97
5418-333541-13 1,000 17 17-Apr-97 23-Apr-97
5418-333543-13 1,000 17 17-Apr-97 23-Apr-97
5418-333549-13 1,000 17 17-Apr-97 23-Apr-97
5418-333556-13 1,000 17 17-Apr-97 23-Apr-97
5421-333504-13 1,000 17 17-Apr-97 23-Apr-97
5423-999339-13 1,000 17 17-Apr-97 23-Apr-97
0418-333539-13 2,000 17 17-Apr-97 23-Apr-97
0418-333547-13 2,000 17 17-Apr-97 23-Apr-97
0418-333548-13 2,000 17 17-Apr-97 23-Apr-97
0418-333552-13 2,000 17 17-Apr-97 23-Apr-97
0418-333555-13 2,000 17 17-Apr-97 23-Apr-97
0418-333558-13 2,000 17 17-Apr-97 23-Apr-97
0421-333501-13 2,000 17 17-Apr-97 23-Apr-97
-36-
<PAGE>
Essex International Inc.
Cusip No. 297025108
Settlement
REFERENCE # Pur. Sales Price Trade Date Date
----------- ----- ----- ------ ---------- ----------
5423-999340-13 2,000 17 17-Apr-97 23-Apr-97
0418-333545-13 3,000 17 17-Apr-97 23-Apr-97
0418-333550-13 3,000 17 17-Apr-97 23-Apr-97
0421-333505-13 3,000 17 17-Apr-97 23-Apr-97
0421-333516-13 3,000 17 17-Apr-97 23-Apr-97
5418-333551-13 3,000 17 17-Apr-97 23-Apr-97
5418-333553-13 3,000 17 17-Apr-97 23-Apr-97
5421-333515-13 3,000 17 17-Apr-97 23-Apr-97
5421-333514-13 3,200 17 17-Apr-97 23-Apr-97
5418-333544-13 4,000 17 17-Apr-97 23-Apr-97
0418-333554-13 5,000 17 17-Apr-97 23-Apr-97
0421-333510-13 5,000 17 17-Apr-97 23-Apr-97
0421-333511-13 5,000 17 17-Apr-97 23-Apr-97
5421-333513-13 5,000 17 17-Apr-97 23-Apr-97
0418-333540-13 5,800 17 17-Apr-97 23-Apr-97
0418-333542-13 7,000 17 17-Apr-97 23-Apr-97
0421-333509-13 9,500 17 17-Apr-97 23-Apr-97
-37-
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) promulgated under the Securities
Exchange Act of 1934, the undersigned agree to the joint filing of a Statement
on Schedule 13D (including any and all amendments thereto) with respect to the
shares of Essex International Inc. and further agree to the filing of this
agreement as an Exhibit thereto. In addition, each party to this Agreement
expressly authorizes each other party to this Agreement to file on its behalf
any and all amendments to such Statement on Schedule 13D.
Date: May 23, 1997
GOLDMAN, SACHS & CO.
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: Managing Director
THE GOLDMAN SACHS GROUP, L.P.
By: The Goldman Sachs Corporation,
its general partner
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: Executive Vice President
GS ADVISORS, L.P.
By: GS Advisors, Inc., its general partner
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: President
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: President
<PAGE>
STONE STREET FUND 1992, L.P.
By: Stone Street Performance Corp.,
its general partner
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: Vice President
BRIDGE STREET FUND 1992, L.P.
By: Stone Street Performance Corp.,
its managing general partner
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: Vice President
STONE STREET PERFORMANCE CORP.
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: Vice President
-2-
EXHIBIT 2
- --------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
by and among
B E ACQUISITION CORPORATION*
and
The Persons Listed on
the Signature Pages Hereof
--------------------------------------------
Dated as of October 9, 1992
- --------------------------------------------------------------------------------
- -------------
* To which MS/Essex Holdings Inc. (to be renamed "BCP/Essex Holdings Inc.")
shall succeed following the merger of B E Acquisition Corporation with and into
MS/Essex Holdings Inc., which merger shall occur immediately following the
execution of this Agreement.
<PAGE>
TABLE OF CONTENTS
Section Page
- ------- ----
1. Definitions............................................. 1
2. Registration Under the Securities Act................... 8
(a) Required Registration.......................... 8
(b) Incidental Registration........................ 12
(c) Expenses....................................... 15
(d) Effective Registration Statement;
Suspension.................................. 15
(e) Selection of Underwriters...................... 16
(f) Market Making Prospectus....................... 18
3. Hold-Back Agreements.................................... 18
(a) Restrictions on Public Sale by Holder
of Registrable Securities................... 18
(b) Restrictions on Public Sale by the
Company and Others.......................... 20
4. Registration Procedures................................. 21
5. Indemnification; Contribution........................... 29
(a) Indemnification by the Company................. 29
(b) Indemnification by Holders,
Underwriters, Etc........................... 30
(c) Conduct of Indemnification Proceedings......... 31
(d) Contribution................................... 33
6. Miscellaneous........................................... 34
(a) No Inconsistent Agreements..................... 34
(b) Amendments and Waivers......................... 35
(c) Notices........................................ 36
(d) Successors and Assigns......................... 37
(e) Recapitalizations, Exchanges, Etc.,
Affecting Registrable Securities............ 37
(f) Third Party Beneficiary........................ 37
(g) Counterparts................................... 38
(h) Descriptive Headings, Etc...................... 38
(i) Severability................................... 38
(j) Governing Law.................................. 38
(k) Specific Performance........................... 39
(l) Entire Agreement............................... 39
<PAGE>
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of October 9,
1992, by and among B E ACQUISITION CORPORATION, a Delaware corporation (the
"Company", which term shall refer to MS/Essex Holdings Inc. (to be renamed
"BCP/Essex Holdings Inc.") following the merger of B E Acquisition Corporation
with and into MS/Essex Holdings Inc., which merger shall occur immediately
following the execution of this Agreement) and the Persons (other than the
Company) listed on the signature pages hereof (herein referred to collectively
as the "Initial Holders" and individually as an "Initial Holder") and any other
Person that shall from and after the date hereof acquire any Registrable
Securities or any securities convertible into or exchangeable or exercisable for
such securities, directly or indirectly, from any Initial Holder or any
transferee thereof, (herein referred to collectively as the "Holders" and
individually as a "Holder").
This Agreement is made pursuant to the Stock and Warrant Subscription
Agreement between the Company and the Initial Holders (the "Subscription
Agreement") which provides for the sale to the Initial Holders of shares of the
Company's Class A Common Stock, $.01 par value per share (the "Common Shares"),
shares of the Company's Series A Cumulative Redeemable Exchangeable Preferred
Stock (the "Series A Preferred"), which is exchangeable at the option of the
Company for 15% Junior Subordinated Exchange Debentures of the Company (the
"Exchange Debt"), and Warrants (the "Warrants"), each initially to purchase one
Common Share (the "Warrant Shares"). In order to induce the Initial Holders to
enter into the Subscription Agreement, and as a condition to the closing of the
transactions contemplated thereby, the Company has agreed to provide the Holders
with the registration and other rights set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the
representations, warranties and 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.
(a) As used in this Agreement, the following terms shall have the
following meanings:
<PAGE>
"Chemical Holders" shall mean Holders who are Chemical Equity
Associates, a California Limited Partnership or Affiliates of or, directly or
indirectly, successors to or transferees of Chemical Equity Associates, a
California Limited Partnership.
"Class" shall mean, when used to refer to Registrable Securities, each
of (i) the Series A Preferred, (ii) the Common Shares (including any Non-Voting
Common Shares convertible into Common Shares) and the Warrants, treated as a
single class, and (iii) the Exchange Debt, each of (i), (ii) and (iii) treated
as a separate class.
"Commencement Date" shall mean (i) with respect to the Series A
Preferred and the Exchange Debt, the earlier of (A) the second anniversary of
the Closing Date, and (B) an Event of Public Distribution, and (ii) with respect
to the Warrants and the Common Shares, treated as a single Class, the earliest
of (A) the fifth anniversary of the Closing Date, (B) an Event of Public
Distribution and (C) with respect to a request to effect a Required Registration
involving Common Shares amounting to at least 10% of the Common Shares
outstanding immediately following the Acquisition and having an aggregate
offering price of at least $35 million (based on the then-Current Market Price
(as such term is defined in the Warrant Agreement pursuant to which the Warrants
are issued (provided that, in the case of an initial public offering, the
Underwriter shall make the determination contemplated by such definition), the
third anniversary of the Closing Date (provided, however, that, in the event
that any Holder shall, pursuant to paragraph (a) or (b) of Section 2, have
requested that any Common Shares be included in any Registration Statement, and
shall have been subject to any reduction pursuant to Section 2(a)(ii) or
2(b)(ii) in the maximum number of Registrable Securities which such Holder may
register, the Commencement Date with respect to a request to effect a Required
Registration involving Common Shares amounting to at least 7.5% of the Common
Shares outstanding immediately following the Acquisition and having an aggregate
offering price of at least $26.25 million (based on the then-Current Market
Price determined as set forth in this clause (c)), shall also be the third
anniversary of the Closing Date).
"Common Shares" shall have the meaning set forth in the preamble, and
each reference thereto herein shall include the Warrant Shares.
-2-
<PAGE>
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Corresponding Class" shall mean (i) when used with reference to any
series of preferred stock of the Company, the Series A Preferred, and
vice-versa, (ii) when used with reference to any class of common stock of the
Company, the Warrants and the Common Shares, treated as a single class, and
vice-versa, and (iii) when used with reference to any issue of debt of the
Company, the Exchange Debt, and vice-versa.
"DLJ Holders" shall mean Holders who are DLJ Investors or Affiliates of
or, directly or indirectly, successors to or transferees of DLJ Investors.
"DLJ Trigger" shall mean any time at which the sum of (w) the aggregate
amount originally paid in respect of Common Shares owned by the DLJ Holders,
plus (x) the aggregate liquidation preference of shares of Series A Preferred
owned by the DLJ Holders (or, if any Exchange Debt is outstanding, the aggregate
principal amount of Exchange Debt owned by the DLJ Holders), plus (y) the
aggregate amount paid upon exercise of Warrants relating to Warrant Shares owned
by the DLJ Holders, plus (z) the aggregate liquidation preference of any shares
of Series A Preferred previously owned by the DLJ Holders and their predecessors
and redeemed or repurchased by or at the direction of the Corporation (or, if
any Exchange Debt is outstanding, the aggregate principal amount of any Exchange
Debt previously owned by the DLJ Holders and their predecessors and redeemed or
repurchased by or at the direction of the Corporation), shall be less than
$10,000,000.
"DLJSC" shall mean Donaldson Lufkin & Jenrette Securities Corporation
and its successors.
"Event of Public Distribution" shall mean the earliest of (x)any sale
to the public of any common equity of the Company, (y) such time as the Company
would be subject to the registration requirements of Section 12 of the Exchange
Act by virtue of the number of holders of its common equity, (z) such time as
any common equity of the Company is listed on any securities exchange or on the
NASDAQ National Market System or listed, traded or quoted on another similar
public trading or reporting system.
-3-
<PAGE>
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Debt" shall have the meaning set forth in the preamble.
"GS" shall mean Goldman, Sachs & Co. and its successors.
"GS Holders" shall mean Holders who are GS Investors or Affiliates of
or, directly or indirectly, successors to or transferees of GS Investors.
"GS Trigger" shall have the same meaning as "DLJ Trigger", substituting
in such definition "GS" each time "DLJ" appears.
"Holder" shall have the meaning set forth in the preamble.
"Incidental Registration" shall mean a registration required to be
effected pursuant to Section 2(b).
"Incidental Registration Statement" shall mean a registration statement
of the Company, as provided in Section 2(b), which covers any of the Registrable
Securities on an appropriate form in accordance with the Securities Act and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all materials incorporated by reference
therein.
"Initial Holder" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean (i) with respect to the Series A
Preferred, Holders representing a majority of the aggregate number of
outstanding shares of Series A Preferred held by Holders, (ii) with respect to
the Warrants and the Common Shares, treated as a single class, Holders of
Warrants or Common Shares representing in the aggregate a majority of the
aggregate number of outstanding Common Shares held by Holders and Warrant Shares
issuable upon exercise of all outstanding Warrants held by Holders and (iii)
with respect to the Exchange Debt, Holders representing a majority in aggregate
-4-
<PAGE>
principal amount of the outstanding Exchange Debt held by Holders, as the case
may be; provided, however, that to the extent an action is to be taken with
respect to a specific registration, Majority Holders shall mean the Holders of
Registrable Securities in the applicable Class representing a majority of the
shares (including shares issuable upon exercise of Warrants), liquidation
preference or principal amount of Registrable Securities in such Class to be
registered.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Non-Voting Common Shares" shall mean the Class B Common Stock, par
value $0.01 per share, of the Corporation convertible into Common Shares.
"Person" shall mean any individual, limited or general partnership,
corporation, trust, joint venture, association, joint stock company or
unincorporated organization or any government or agency, regulatory body or
other authority or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary Prospectus, and any such Prospectus as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities and by all other
amendments and supplements to such Prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Registrable Securities" shall mean the Series A Preferred, the
Exchange Debt, the Warrants and the Common Shares (but shall not include any
share of Series A Preferred, any debenture representing Exchange Debt, any
Warrant or any Common Share, (i) which has been effectively registered under the
Securities Act and disposed of in accordance with a Registration Statement
covering such security or (ii) which has been distributed to the public pursuant
to Rule 144 under the Securities Act, and, in each such case, the certificate or
other evidence of ownership of which does not and is not required to bear any
legend previously required by the Subscription Agreement, the Certificate of
Designation of the Series A Preferred or the indenture for the Exchange Debt or
any other legend of similar import and is not subject to any stop transfer
order).
-5-
<PAGE>
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement by the Company and its
subsidiaries, including:
(i) all SEC, stock exchange, NASD and other registration and filing
fees (including, if applicable, in the first registration effected pursuant
to Section 2(a) at the request of DLJ Holders, in the first registration
effected pursuant to Section 2(a) at the request of GS Holders, and in any
registration effected pursuant to Section 2(b), the fees and expenses of any
"qualified independent underwriter" (and its counsel) that is required to be
retained in accordance with the rules and regulations of the NASD),
(ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel in connection such
compliance and the preparation of a Blue Sky Memorandum and legal investment
survey),
(iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, transmittal letters, securities sales agreements,
securities certificates and other documents relating to the performance of
and compliance with this Agreement,
(iv) all fees and expenses incurred in connection with the listing, if
any, of any of the Registrable Securities on any securities exchange or
exchanges pursuant to Section 4(n),
(v) the reasonable fees of one counsel retained, in connection with
the first registration effected pursuant to Section 2(a) at the request of
DLJ Holders and the first registration effected pursuant to Section 2(a) at
the request of GS Holders, by the Majority Holders initially requesting each
such registration,
-6-
<PAGE>
(vi) the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company, including the expenses of any
annual or special audits or "cold comfort" letters required by or incident
to such performance and compliance,
(vii) the fees and expenses of any trustee, transfer agent, registrar,
escrow agent or custodian,
(viii) any fees and disbursements of the Underwriters customarily
required to be paid by issuers or sellers of securities and relating to the
sale or disposition of Registrable Securities by a Holder, but excluding
discounts and commissions payable to underwriters, selling brokers, managers
or other similar Persons engaged in the distribution of any of the
Registrable Securities,
(ix) the reasonable fees and expenses of any special experts or other
persons retained by the Company in connection with any Registration
Statement, and
(x) all internal expenses of the Company (including all salaries and
expenses of officers and employees performing legal or accounting duties).
"Registration Statement" shall mean any registration statement of the
Company which covers any Registrable Securities and all amendments and
supplements to any 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.
"Required Registration" shall mean a registration required to be
effected pursuant to Section 2(a).
"Required Registration Statement" shall mean a registration statement
of the Company which covers all of the Registrable Securities requested to be
included therein pursuant to the provisions of Section 2(a) on an appropriate
form pursuant to the Securities Act, and which form shall be available for the
sale of the Registrable Securities in accordance with the intended method or
methods of distribution thereof, and all 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.
-7-
<PAGE>
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Series A Preferred" shall have the meaning set forth in the preamble.
"Subscription Agreement" shall have the meaning set forth in the
preamble.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Underwriter" shall have the meaning set forth in Section 5(a).
"Underwritten Offering" shall mean a sale of securities of the Company
to an Underwriter or Underwriters for reoffering to the public.
"Warrant Shares" shall have the meaning set forth in the preamble.
"Warrants" shall have the meaning set forth in the preamble.
(b) Capitalized terms use herein and not otherwise defined shall have
the meanings assigned such terms in the Subscription Agreement.
Section 2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Required Registration
(i) Right to Require Registration. At any time from and after the
Commencement Date applicable to a Class of Registrable Securities, one or more
DLJ Holders of any Class of Registrable Securities having an aggregate of at
least 50% of the Registrable Securities of such Class held by DLJ Holders, one
or more GS Holders of any Class of Registrable Securities having an aggregate of
-8-
<PAGE>
at least 50% of the Registrable Securities of such class held by GS Holders, or
one or more Holders of any Class of Registrable Securities having an aggregate
of at least 50% of such Class of Registrable Securities held by Holders, shall
have the right to request in writing (which request shall specify the
Registrable Securities of such Class intended to be disposed of by such Holders
and the intended method of distribution thereof) that the Company register such
Holders' Registrable Securities of such Class by filing with the SEC a Required
Registration Statement. Upon the receipt of such a request, the Company will
promptly give written notice of such requested registration to all DLJ Holders
and GS Holders of Registrable Securities of the same Class, and, not later than
the 60th calendar day after the receipt of such a request by the Company, the
Company will cause to be filed a Required Registration Statement covering the
Registrable Securities of such Class which the Company has been so requested to
register in such request and all other Registrable Securities of such Class
which the Company has been requested to register by DLJ Holders or GS Holders
thereof by written request given to the Company within 30 days after the giving
of such written notice by the Company, providing for the registration under the
Securities Act of the Registrable Securities of such Class which the Company has
been so requested to register by all such Holders, to the extent necessary to
permit the disposition of such Registrable Securities so to be registered in
accordance with the intended methods of distribution thereof specified in such
request or requests (provided that the Company may delay such filing by not more
than 30 days if the Company, prior to the time it would otherwise have been
required to file such Registration Statement, determines in good faith and for
valid business reasons (not including avoidance of the Company's obligations
hereunder) to take an action, including the acquisition or divestiture of
assets, or if an event has occurred, in either case that would have to be
disclosed in a Registration Statement and that, in the reasonable judgment of
the company, would be detrimental to the Company if so disclosed), and shall use
its reasonable best efforts to have such Required Registration Statement
declared effective by the SEC as soon as practicable thereafter (but in no event
later than the 120th calendar day after the receipt of such a request) and to
keep such Required Registration Statement continuously effective for a period of
at least 180 calendar days following the date on which such Required
Registration Statement is declared effective (or such shorter period which will
-9-
<PAGE>
terminate when all of the Registrable Securities covered by such Required
Registration Statement have been sold pursuant thereto), including, if
necessary, by filing with the SEC a post- effective amendment or a supplement to
the Required Registration Statement or the related Prospectus or any document
incorporated therein by reference or by filing any other required document or
otherwise supplementing or amending the Required Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Required Registration Statement
or by the Securities Act, any state securities or blue sky laws, or any rules
and regulations thereunder.
The Company shall not be required to effect, pursuant to this Section
2(a), (x) with respect to the Series A Preferred and the Exchange Debt, more
than two registrations requested by DLJ Holders or more than one registration
requested by GS Holders, or (y) with respect to the Warrants and the Common
Shares, treated as a single Class, more than two registrations predicated on a
Commencement Date set forth in sub-clause (A) or ((B) of clause (ii) of the
definition of Commencement Date and requested by GS Holders, more than one
registration predicated on a Commencement Date set forth in sub-clause (C) of
clause (ii) of the definition of Commencement Date and requested by GS Holders,
more than two registrations predicated on a Commencement Date set forth in
sub-clause (A) or (B) of clause (ii) of the definition of Commencement Date and
requested by DLJ Holders, or more than one registration predicated on a
Commencement Date set forth in sub-clause (C) of clause (ii) of the definition
of Commencement Date and requested by DLJ Holders.
A registration shall be deemed to have been requested by Holders who
are DLJ Holders or Holders who are GS Holders, as the case may be, if the
Majority Holders initially requesting such registration are DLJ Holders or GS
Holders, as the case may be. In addition, the Company shall not be required to
effect a registration of any Class of Registrable Securities if less than 90
calendar days have elapsed since the effective date of a prior Registration
Statement with respect to such Class or a Corresponding Class or if less than
120 calendar days have elapsed since the effective date of a prior Registration
Statement with respect to such Class or a Corresponding Class and with respect
to which all Holders of such Class were given the
-10-
<PAGE>
opportunity, in accordance with the provisions of Section 2(a), to register
their Registrable Securities of such Class (without being subject to any
reduction, pursuant to Section 2(a)(ii), in the maximum number of Registrable
Securities which they may register). Notwithstanding the foregoing, the Company
shall be entitled to postpone the filing of a Registration Statement requested
to be filed pursuant to this paragraph (a) solely with respect to Warrants or
Common Shares for a period not to exceed 30 days after the date such
Registration Statement would otherwise be required to be filed if the Company,
no later than the expiration of the time by which it would otherwise have been
required to file a Registration Statement required to be filed pursuant to this
paragraph (a) notifies the DLJ Holders and GS Holders of Warrants and Common
Shares, if any, that the Company has determined to conduct an initial public
offering of its common equity and prior to the expiration of such 30 day period
the Company files a Registration Statement with respect to such offering.
The registration rights granted pursuant to the provisions of this
paragraph (a) shall be in addition to the registration rights granted pursuant
to the other provisions of this Section 2.
(ii) Priority in Required Registrations. If a Required Registration
pursuant to this paragraph (a) involves an Underwritten Offering of Registrable
Securities, which Registrable Securities are to be distributed (on a firm
commitment basis) by or through one or more Underwriters of recognized standing
under underwriting terms appropriate for such transaction, and the Underwriter
or the managing Underwriter, as the case may be, of such Underwritten Offering
shall advise the Company in writing (with a copy to each DLJ Holder and each GS
Holder of Registrable Securities requesting registration) on or before the date
5 days prior to the date then scheduled for such offering that, in its opinion,
the amount of Registrable Securities and other securities requested to be
included in such Required Registration exceeds the amount which can be sold in
(or during the time of) such offering within a price range acceptable to the DLJ
Holders and GS Holders of Registrable Securities who have requested that their
Registrable Securities be included in such Required Registration, the Company
will include in such Required Registration only the amount of Registrable
Securities and other securities that the Company is so advised can be sold
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in (or during the time of) such offering within such price range; provided,
however, that the Company shall be required to include in such Required
Registration first, all Registrable Securities of the DLJ Holders or GS Holders
initially requesting registration pursuant hereto and any other Registrable
Securities of DLJ Holders or GS Holders of such Class of Registrable Securities
requesting to be included in such registration pursuant hereto before including
any other securities in such Required Registration, and, to the extent not all
such Registrable Securities can be included in such Required Registration, the
number of Registrable Securities to be included shall be allocated pro rata
among the DLJ Holders and GS Holders thereof requesting such registration on the
basis of the number of shares of Series A Preferred, the number of Warrants or
Common Shares, or the principal amount of Exchange Debt, as the case may be, of
the Registrable Securities requested to be included by all such DLJ Holders and
GS Holders; and second, all other securities requesting to be included in such
registration, and, to the extent not all such securities can be included in such
Required Registration, the number of securities to be included shall be
allocated pro rata among the holders thereof requesting such registration on the
basis of the number of shares of common stock, the number of warrants, the
liquidation preference of preferred stock, or the principal amount of debt, as
the case may be, of the securities requested to be included by all such holders;
and provided, further, that in the event the Company will not, by virtue of this
paragraph, include in any Required Registration all of the Registrable
Securities of any DLJ Holder and GS Holder requested to be included in such
Required Registration, such DLJ Holder or GS Holder may, upon written notice to
the Company given within 5 days of the time such DLJ Holder or GS Holder first
is notified of such matter, reduce the amount of Registrable Securities it
desires to have included in such Required Registration, whereupon only the
Registrable Securities, if any, it desires to have included will be so included.
(b) Incidental Registration.
(i) Right to Include Registrable Securities. If the Company at any time
proposes to register any of its securities under the Securities Act (other than
(A) any registration of public sales or distributions solely by and for the
account of the Company of securities issued (x) pursuant to any employee benefit
or similar plan or any dividend reinvestment plan or (y) in any acquisition by
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the Company, (B) pursuant to paragraph (a) of this Section, or (C) pursuant to a
registration statement filed in connection with an exchange offer), whether in
connection with a primary or secondary offering, and whether or not the
Commencement Date applicable to the Corresponding Class of Registrable
Securities shall have occurred, and there are Registrable Securities of the
Corresponding Class (but, prior to the fifth anniversary of the Closing Date,
excluding, in the event of any offering other than of warrants to purchase any
class of common stock of the Company, Warrants) outstanding which at such time
are not then registered under another Registration Statement which is then
effective, the Company will, each time it intends to effect such a registration,
give written notice to all Holders of Registrable Securities of such
Corresponding Class at least 20 days prior to the initial filing of a
Registration Statement with the SEC pertaining thereto, informing such Holders
of its intent to file such Registration Statement and of such Holders' rights to
request the registration of the Registrable Securities of the Corresponding
Class held by such Holders under this paragraph (b); provided, however, that the
Company shall not be required to give this notice with respect to any
registration in which no Holders of Registrable Securities will be entitled to
participate; provided, further, however, that in order for Holders of Warrants
to participate in a registration with respect to the sale of common stock of the
Company in an initial public offering, they must furnish the Company with an
undertaking to exercise all Warrants in respect of their Warrant Shares to be
sold in the offering prior to the closing thereof. Upon the written request of
any such Holder made within 10 days after any such notice is given (which
request shall specify the Registrable Securities intended to be disposed of by
such Holder and the intended method of distribution thereof), the Company will
use its reasonable best efforts to effect the registration under the Securities
Act of all Registrable Securities which the Company has been so requested to
register by the Holders thereof to the extent required to permit the disposition
(in accordance with the intended methods of distribution thereof) of the
Registrable Securities so requested to be registered, including, if necessary,
by filing with the SEC a post-effective amendment or a supplement to the
Incidental Registration Statement or the related Prospectus or any document
incorporated therein by reference or by filing any other required document or
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otherwise supplementing or amending the Incidental Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Incidental Registration Statement
or by the Securities Act, any state securities or blue sky laws, or any rules
and regulations thereunder; provided, however, that Holders of Series A
Preferred or Exchange Debt, as the case may be, shall not have the right to
include such securities in an Incidental Registration Statement hereunder filed
in connection with an offering of securities the proceeds of which will be used
to redeem completely such securities; provided, further, that if, at any time
after giving written notice of its intention to register any securities and
prior to the effective date of the Incidental Registration Statement filed in
connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to each Holder of
Registrable Securities and, thereupon, (A) in the case of a determination not to
register, the Company shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but not from its
obligation to pay the Registration Expenses incurred in connection therewith),
and (B) in the case of a determination to delay such registration, the Company
shall be permitted to delay registration of any Registrable Securities requested
to be included in such Incidental Registration Statement for the same period as
the delay in registering such other securities.
The registration rights granted pursuant to the provisions of this
paragraph (b) shall be in addition to the registration rights granted pursuant
to the other provisions of this Section.
(ii) Priority in Incidental Registrations. If a registration pursuant
to this paragraph (b) involves an Underwritten Offering of the securities so
being registered, whether or not for sale for the account of the Company, which
securities are to be distributed (on a firm commitment basis) by or through one
or more Underwriters of recognized standing under underwriting terms appropriate
for such transaction, and the Underwriter or the managing Underwriter, as the
case may be, of such Underwritten Offering shall advise the Company in writing
(with a copy to each Holder of Registrable Securities requesting registration)
on or before the date 5 days prior to the date then scheduled for such offering
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that, in its opinion, the amount of securities (including Registrable
Securities) requested to be included in such registration exceeds the amount
which can be sold in (or during the time of) such offering without adversely
affecting the distribution of the securities being offered, then the Company
will include in such registration first, all the securities initially proposed
to be sold pursuant to such registration statement, and second, the amount of
other securities (including Registrable Securities) requested to be included in
such registration that the Company is so advised can be sold in (or during the
time of) such offering, allocated, if necessary, pro rata among the holders
(including the Holders) thereof requesting such registration on the basis of the
number, principal amount or liquidation preference, as the case may be, of the
securities (including Registrable Securities) requested to be included by all
such holders; provided, however, that in the event the Company will not, by
virtue of this paragraph, include in any such registration all of the
Registrable Securities of any Holder requested to be included in such
registration, such Holder may, upon written notice to the Company given within 5
days of the time such Holder first is notified of such matter, reduce the amount
of Registrable Securities it desires to have included in such registration,
whereupon only the Registrable Securities, if any, it desires to have included
will be so included.
(c) Expenses. The Company agrees to pay all Registration Expenses in
connection with each registration pursuant to this Section. Each Holder shall
pay all discounts and commissions payable to underwriters, selling brokers,
managers or other similar Persons related to the sale or disposition of such
Holder's Registrable Securities pursuant to any such registration.
(d) Effective Registration Statement; Suspension. A Registration
Statement pursuant to this Section will not be deemed to have become effective
(and the related registration will not be deemed to have been effected) unless
it has been declared effective by the SEC prior to a request by the party
requesting such registration to withdraw such Registration Statement (provided
that if such request is made at a time when such Registration Statement would be
promptly declared effective if a request to accelerate such effectiveness were
made to the SEC, such Registration Statement will be deemed to have become
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effective (and the related registration will be deemed to have been effected);
provided, however, that if, after it has been declared effective, the offering
of any Registrable Securities pursuant to such Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court (other than any such stop
order or injunction issued as a result of the inclusion in such Registration
Statement of any information supplied to the Company for inclusion therein by a
Holder of Registrable Securities), such Registration Statement will be deemed
not to have become effective.
Any period during which the Company fails to keep any Required
Registration Statement effective and usable for resale of Registrable Securities
shall be referred to as a "Suspension Period." A Suspension Period shall
commence on and include the date that the Company gives notice that any Required
Registration Statement is no longer effective or usable for resale of
Registrable Securities to and including the date when each Holder of Registrable
Securities covered by such Required Registration Statement either receives the
copies of the supplemented or amended Prospectus contemplated by Section 4(j) or
is advised in writing by the Company that the use of the Prospectus may be
resumed. In the event of one or more Suspension Period, the 180-day time period
referenced in paragraph (a) of this Section shall be extended by the number of
days included in each such Suspension Period, and, in the event any Suspension
Period occurs sooner than 30 days after the end of the previous Suspension
Period or 30 days after the initial effectiveness of any Required Registration
Statement, none of the days between such Suspension Periods or prior to such
Suspension Period shall be included in computing such 180-day time period.
(e) Selection of Underwriters. At any time or from time to time, the
Majority Holders of each applicable Class of Registrable Securities covered by a
Registration Statement may elect to have such Registrable Securities sold in an
Underwritten Offering. In the event (x) such Majority Holders are DLJ Holders,
DLJSC shall, if DLJSC agrees to such engagement and subject to the provisio to
this clause (x), have the right to act as the sole Underwriter (or, at DLJSC's
option, the managing Underwriter) of the offering of such Registrable Securities
on terms customary for such type of underwriting (provided that if any of the
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Holders of Registrable Securities covered by such Registration Statement are GS
Holders, GS shall, if GS agrees to such engagement, have the right to act as
co-exclusive or co- managing Underwriter, as the case may be, of the offering of
such Registrable Securities), and (y) if such Majority Holders are GS Holders,
GS shall, if GS agrees to such engagement and subject to the proviso to this
clause (y), have the right to act as the sole Underwriter (or, at GS's option,
the managing Underwriter) of the offering of such Registrable Securities on
terms customary for such type of underwriting (provided that if any of the
Holders of Registrable Securities covered by such Registration Statement are DLJ
Holders, DLJSC shall, if DLJSC agrees to such engagement, have the right to act
as co-exclusive or co-managing Underwriter, as the case may be, of the offering
of such Registrable Securities), and (z) if such Majority Holders are neither
DLJ Holders nor GS Holders, DLJSC and GS shall, in alternation, if DLJSC or GS,
as the case may be, agrees to such engagement and subject to the proviso to this
clause (z), have the right to act as the sole Underwriter (or, at DLJSC's or
GS's, as the case may be, option, the managing Underwriter) of the offering of
such Registrable Securities on terms customary for such type of underwriting
(provided that if any of the Holders of Registrable Securities covered by such
Registration Statement are DLJ Holders or GS Holders, DLJSC or GS, as the case
may be, shall, if DLJSC or GS, as the case may be, agrees to such engagement,
have the right to act as co-exclusive or co- managing Underwriter, as the case
may be, of the offering of such Registrable Securities). If neither DLJSC nor GS
agrees in writing to such engagement at the time the Majority Holders of such
class of Registrable Securities elect to sell their Registrable Securities in an
Underwritten Offering or at any time thereafter, the investment banker or
investment bankers and manager or managers that will serve as Underwriter with
respect to the offering of such Registrable Securities will be selected by the
Majority Holders of such Class of Registrable Securities; provided that such
investment bankers and managers must be reasonably satisfactory to the Company.
No Holder may participate in any Underwritten Offering hereunder unless such
Holder (a) agrees to sell such Holder's securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
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attorney, indemnities, underwriting agreements and other documents required
under the terms of such Underwritten Offering.
Notwithstanding the foregoing, however, nothing herein shall require
any securities covered by a Registration Statement pursuant to Section 2(b) that
are not held by a DLJ Holder or a GS Holder to be sold in an Underwritten
Offering, or, in the event any such securities are sold in an Underwritten
Offering, require that either DLJSC or GS act as Underwriter with respect
thereto.
(f) Market Making Prospectus. In addition to the other obligations of
the Company pursuant to this Section, the Company agrees that at its expense
(including the reasonable fees and expenses of counsel to DLJSC and GS), at the
request of DLJSC or GS, the Company will, at the time of filing any other
Registration Statement relating to any Class of Registrable Securities, whether
hereunder or otherwise, (i) prepare a Registration Statement in connection with
the market making activities of DLJSC or GS with respect to such Class of
Registrable Securities containing such disclosures as may be required by the
Securities Act and other applicable laws and such other disclosures as are
customary and appropriate for such a document and (ii) file such Registration
Statement and use its reasonable best efforts to cause such Registration
Statement to become effective under the Securities Act as soon as practicable
thereafter, but in any event no later than such time as such other Registration
Statement relating to any of such Class of Registrable Securities shall become
effective, and to keep such Registration Statement in effect as long as is
required in DLJSC's or GS's judgment to permit DLJSC or GS to engage in market
making activities with respect to such Class of Registrable Securities, but in
no event for more than eighteen months after such other Registration Statement
shall become effective; provided, however, that the foregoing shall not apply to
actions taken by the Company in good faith and for valid business reasons,
including the acquisition or divestiture of assets, so long as the Company as
promptly as reasonably possible thereafter complies with the requirements of
Section 4(e)(iv) and 4(j).
Section 3. HOLD-BACK AGREEMENTS.
(a) Restrictions on Public Sale by Holder of Registrable Securities.
Each Holder of Registrable Securities whose Registrable Securities are covered
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by a Registration Statement filed pursuant to Section 2 agrees, if the offering
is an Underwritten Offering, that if requested by the Underwriter or managing
Underwriter in such an Underwritten Offering, not to effect any public sale or
distribution of securities of the Company of the same class or classes as the
securities included in the Registration Statement during the 14-day period prior
to, and during the 90-day period beginning on, the effective date of the
Registration Statement (except pursuant to the Registration Statement).
Each Holder of Registrable Securities agrees not to effect any public
sale or distribution of any Registrable Securities that are in a Corresponding
Class to any securities of the Company offered and sold by the Company,
Bessemer, any DLJ Holder, any GS Holder or any other Qualifying Seller (as
hereinafter defined) pursuant to an effective registration statement with
respect to such securities or to an Underwritten Offering of such securities,
during the 14-day period prior to, and during the 90-day period beginning on,
(1) the effective date of a registration statement with respect to such
securities, or (2) the commencement of an Underwritten Offering of such
securities, in each case, if requested by the Underwriter or managing
Underwriter in such an Underwritten Offering, or by the holders of such
securities (except pursuant to such registration statement). The Company agrees
not to waive or modify in any respect detrimental to the Holders of Registrable
Securities the corresponding commitment of Bessemer with respect to the
forbearance of Bessemer and its Affiliates and successors from public sales and
distributions of securities which are in a Corresponding Class with respect to
Registrable Securities being registered pursuant to a Registration Statement.
Notwithstanding anything to the contrary herein, the foregoing
provisions shall not prohibit or impose any restrictions on any public sale or
distribution of any Registrable Securities by Holders if such prohibition or
restriction would, together with any other prohibition or restriction imposed
hereunder on the public sale or distribution of any Registrable Securities by
Holders, result in such Holders being prohibited or restricted from the public
sale or distribution of any Registrable Securities for an aggregate period in
excess of 180 days during any 12-month period.
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The foregoing provisions shall not apply to any Holder of Registrable
Securities if such Holder is prevented by applicable statute or regulation from
entering into any such agreement; provided, however, that any such Holder shall,
if requested by the Underwriter or managing Underwriter in an Underwritten
Offering referred to in the previous paragraph, undertake not to effect any
public sale or distribution of the Class of Registrable Securities being
registered for a 90-day period commencing on the date of sale of such Class of
Registrable Securities in such Underwritten Offering unless it has provided
written notice of such sale or distribution to the Underwriter or managing
Underwriter within 30 days after receipt of prior written notice from the
Company or the Underwriter or managing Underwriter of such Underwritten
Offering.
(b) Restrictions on Public Sale by the Company and Others. The Company
agrees (i) not to effect any public sale or distribution (other than public
sales or distributions solely by and for the account of the Company of
securities issued (x) pursuant to any employee benefit or similar plan or any
dividend reinvestment plan or (y) in any acquisition by the Company) of any
securities which are in a Corresponding Class with respect to those Registrable
Securities being registered pursuant to a Registration Statement filed pursuant
to paragraph (a) of Section 2, or any securities convertible into or
exchangeable or exercisable for such securities, during the 14-day period prior
to, and during the 90-day period beginning on, (1) the effective date of a
Registration Statement, or (2) the commencement of an Underwritten Offering, in
each case, if requested by the Underwriter or managing Underwriter in such an
Underwritten Offering, or by the Holder of such Registrable Securities; and (ii)
that any agreement entered into after the date of this Agreement pursuant to
which the Company issues or agrees to issue any privately placed securities
shall contain a provision under which holders of such securities agree not to
effect any public sale or distribution of any securities that are in a
Corresponding Class to Registrable Securities, or any securities convertible
into or exchangeable or exercisable for such securities, during the periods
described in (i) above, in each case including a sale pursuant to Rule 144 under
the Securities Act (each holder who shall have entered into and continued to
abide by such provision, a "Qualifying Seller").
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Section 4. REGISTRATION PROCEDURES.
In connection with the obligations of the Company pursuant to Section
2, the Company shall use its reasonable best efforts to effect or cause to be
effected the registration of the Registrable Securities under the Securities Act
to permit the sale of such Registrable Securities by the Holders in accordance
with their intended method or methods of distribution, and the Company shall:
(a)(i) prepare and file a Registration Statement with the SEC, within
the time period specified in paragraph (b) of Section 2 with respect to a
Required Registration, which Registration Statement (x) shall be on a form
selected by the Company for which the Company qualifies and shall be reasonably
acceptable to counsel for the Holders, (y) shall be available for the sale or
exchange of the Registrable Securities in accordance with the intended method or
methods of distribution by the selling or exchanging Holders thereof, and (z)
shall comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith, (ii) use its reasonable best efforts to cause such Registration
Statement to become effective and remain effective in accordance with Section 2,
(iii) use its reasonable best efforts to prevent the happening of any event that
would cause a Registration Statement to contain a material misstatement or
omission or to be not effective and usable for resale of Registrable Securities
during the period that such Registration Statement is required to be effective
and usable; provided, however, that the foregoing shall not apply to actions
taken by the Company in good faith and for valid business reasons, including the
acquisition or divestiture of assets, so long as the Company as promptly as
reasonably possible thereafter complies with the requirements of Section 4(j),
if applicable, and (iv) cause each Registration Statement and the related
Prospectus and any amendment or supplement thereto, as of the effective date of
such Registration Statement, amendment or supplement (x) to comply in all
material respects with any requirements of the Securities Act and the rules and
regulations of the SEC and (y) not to contain any 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;
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(b) subject to paragraph (j) of this Section 4, prepare and file with
the SEC such amendments and post- effective amendments to each such Registration
Statement, as may be necessary to keep such Registration Statement effective for
the applicable period; cause each such Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders thereof, as
set forth in such registration statement;
(c) furnish to each Holder of Registrable Securities and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder or Underwriter may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities; the Company
hereby consents to the use of the Prospectus, including each preliminary
Prospectus, by each Holder of Registrable Securities and each Underwriter of an
Underwritten Offering of Registrable Securities, if any, in connection with the
offering and sale of the Registrable Securities covered by the Prospectus or the
preliminary Prospectus;
(d)(i) use its reasonable best efforts to register or qualify the
Registrable Securities, no later than the time the applicable Registration
Statement is declared effective by the SEC, under all applicable state
securities or "blue sky" laws of such jurisdictions as each Underwriter, if any,
or any Holder of Registrable Securities covered by a Registration Statement,
shall reasonably request; (ii) keep each such registration or qualification
effective during the period such Registration Statement is required to be kept
effective; and (iii) do any and all other acts and things which may be
reasonably necessary or advisable to enable each such Underwriter, if any, and
Holder to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the Company
shall not be required to register or qualify the Registrable Securities
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in any jurisdiction if registration or qualification in such jurisdiction would
subject the Company to unreasonably burden or expense or, in the case of an
Underwritten Offering, would unreasonably delay the commencement of such
Underwritten Offering; and provided, further, that the Company shall not be
obligated to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject or to consent to be subject to general service of process
(other than service of process in connection with such registration or
qualification or any sale of Registrable Securities in connection therewith) in
any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly, and, if
requested by such Holder, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance by the
SEC or any state securities authority of any stop order, injunction or other
order or requirement suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iii) if, between the
effective date of a Registration Statement and the closing of any sale of
securities covered thereby pursuant to any agreement to which the Company is a
party, the representations and warranties of the Company contained in such
agreement cease to be true and correct in all material respects or if the
Company receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, and (iv) of the happening of any
event during the period a Registration Statement is effective as a result of
which such Registration Statement or the related Prospectus contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
(f) furnish counsel for each such Underwriter, if any, and for the
Holders of Registrable Securities copies of any request by the SEC or any state
securities authority for amendments or supplements to a Registration Statement
and Prospectus or for additional information;
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(g) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible time;
(h) upon request, furnish to the Underwriter or managing Underwriter of
an Underwritten Offering of Registrable Securities, if any, without charge, at
least one signed copy of each Registration Statement and any post- effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits; and furnish to each Holder
of Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post- effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(i) cooperate with the selling Holders of Registrable Securities and
the Underwriter or managing Underwriter of an Underwritten Offering of
Registrable Securities, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations (consistent with the provisions of the governing documents
thereof) and registered in such names as the selling Holders or the Underwriter
or managing Underwriter of an Underwritten Offering of Registrable Securities,
if any, may reasonably request at least three business days prior to any sale of
Registrable Securities;
(j) upon the occurrence of any event contemplated by paragraph (e)(iv)
of this Section, use its reasonable best efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related Prospectus,
or any document incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any 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, in the light of the circumstances under which
they were made, not misleading;
(k) enter into customary agreements (including, in the case of an
Underwritten Offering, underwriting agreements in customary form, and including
provisions with respect to indemnification and contribution in customary
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form and consistent with the provisions relating to indemnification and
contribution contained herein) and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such Registrable
Securities (provided that, in the event of any registration that is not part of
an Underwritten Offering, no such agreement or action shall be required to be
taken if unduly burdensome to the Company) and in connection therewith:
(1) make such representations and warranties to the Holders of such
Registrable Securities and the Underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in similar
underwritten offerings;
(2) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing Underwriters, if any, and the
holders of a majority of the number of shares or warrants, principal amount
or liquidation preference, as the case may be, of the Registrable Securities
being sold) addressed to each selling Holder and the Underwriters, if any,
covering the matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the selling
Holders of Registrable Securities and the Underwriters, if any, which
letters shall be customary in form and shall cover matters of the type
customarily covered in "cold comfort" letters to underwriters in connection
with primary underwritten offerings;
(4) enter into a securities sales agreement with the Holders and DLJSC
or GS, as the case may be, or such other representative as the Majority
Holders of any class of Registrable Securities covered by any Registration
Statement relating to the Registration and providing for, among other
things, the appointment of DLJSC or GS, as the case may be, or such other
representative as agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement shall be
customary in form, substance and scope and shall contain customary
representations, warranties and covenants;
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(5) if an underwriting agreement is entered into, cause the same to
set forth indemnification provisions and procedures substantially equivalent
to the indemnification provisions and procedures set forth in Section 5 with
respect to all parties to be indemnified pursuant to said Section; and
(6) deliver such customary documents and certificates as may be
reasonably requested by the Majority Holders of any class of Registrable
Securities being sold or by the managing Underwriters, if any.
The above shall be done (i) if customary, at the effectiveness of such
Registration Statement (and each post- effective amendment thereto) in
connection with any registration that is part of an Underwritten Offering, (ii)
at the effectiveness of such Registration Statement (and each post-effective
amendment thereto) in connection with any registration that is not part of an
Underwritten Offering, and (iii) at each closing under any underwriting or
similar agreement as and to the extent required thereunder;
(l) make available for inspection by representatives of the Holders of
the Registrable Securities and any Underwriters participating in any disposition
pursuant to a Registration Statement and any counsel or accountant retained by
such Holders or Underwriters, all relevant financial and other records,
pertinent corporate documents and properties of the Company and cause the
respective officers, directors and employees of the Company to supply all
information reasonably requested by any such representative, Underwriter,
counsel or accountant in connection with a Registration Statement; provided,
however, that such records, documents or information which the Company
determines, in good faith, to be confidential and notifies such representatives,
Underwriters, counsel or accountants in writing are confidential, shall not be
disclosed by the representatives, Underwriters, counsel or accountants unless
(i) the release of such records, documents or information is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction, or (ii) such
records, documents or information have previously been generally made available
to the public;
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(m)(i) within a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus, provide copies of such document to the
Holders of Registrable Securities, to DLJSC or GS or both, as the case may be,
and to counsel to such Holders and to the Underwriter or Underwriters of an
Underwritten Offering of Registrable Securities, if any; make such reasonable
changes in any such document prior to or after the filing thereof as DLJSC or GS
or both, as the case may be, or the counsel to the Holders or the Underwriter or
the Underwriters may request and not file any such document in a form to which
the Majority Holders of any class of Registrable Securities being registered or
DLJSC or GS or both, as the case may be, or any Underwriter shall reasonably
object; and make such of the representatives of the Company as shall be
reasonably requested by the Holders of Registrable Securities being registered
or DLJSC or GS or both, as the case may be, or any Underwriter available for
discussion of such document;
(ii) within a reasonable time prior to the filing of any document which
is to be incorporated by reference into a Registration Statement or a
Prospectus, provide copies of such document to counsel for the Holders; make
such reasonable changes in such document prior to or after the filing thereof as
counsel for such Holders, DLJSC, GS, or such Underwriter shall request; and make
such of the representatives of the Company as shall be reasonably requested by
such counsel available for discussion of such document;
(n) use its reasonable best efforts to cause all Registrable Securities
of any Class to be listed on any securities exchange on which securities of the
Corresponding Class issued by the Company are then listed if so requested by the
Majority Holders of such Class of Registrable Securities covered by a
Registration Statement, or if so requested by the Underwriter or Underwriters of
an Underwritten Offering or Registrable Securities, if any;
(o) use its reasonable best efforts to cause all Registrable Securities
of any Class (other than Warrants or Common Shares) to be rated with the
appropriate rating agencies, if so requested by the Majority Holders of such
class of Registrable Securities covered by a Registration Statement, or if so
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requested by the Underwriter or Underwriters of an Underwritten Offering which
includes only Registrable Securities, if any; provided, however, that any fees
or charges of such rating agencies shall be paid by the Holders of the
Registrable Securities included in the relevant Registration Statement;
(p) provide a CUSIP number for all Registrable Securities, not later
than the effective date of a Registration Statement;
(q) if any Exchange Debt is being registered, cause the indenture for
the Exchange Debt to be qualified under the Trust Indenture Act, in connection
with the registration of such Exchange Debt; cooperate with the trustee under
such indenture and the holders of the Exchange Debt to effect such changes to
the indenture as may be required for the indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and execute, and use its
best efforts to cause the trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be filed
with the SEC to enable such indenture to be so qualified in a timely manner;
(r) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering at
least 12 months which shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder; and
(s) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
Underwriter (including any "qualified independent underwriter" that is required
to be retained in accordance with the rules and regulations of the NASD).
Each selling Holder of Registrable Securities as to which any
registration is being effected pursuant to this Agreement agrees, as a condition
to the registration obligations with respect to such Holder provided herein, to
furnish to the Company such information regarding such Holder, the ownership of
Registrable Securities by such Holder and the proposed distribution by such
Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing.
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Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in paragraph (e)(iv) of this
Section, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the affected Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus, contemplated by
paragraph (j) of this Section, and, if so directed by the Company, such Holder
will deliver to the Company (at the expense of the Company), all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities which was current at the
time of receipt of such notice.
Section 5. INDEMNIFICATION; CONTRIBUTION.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Person who participates as an underwriter (any such
Person being an "Underwriter"), each Holder and their respective partners,
directors, officers and employees and each Person, if any, who controls any
Holder or Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act as follows:
(i) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) pursuant
to which Registrable Securities were registered under the Securities Act,
including all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto), including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
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(ii) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or threatened, or
of any other claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all reasonable expense whatsoever, as incurred
(including, subject to the provisions of subsection (c), fees and
disbursements of counsel), incurred in investigating, preparing or defending
against any litigation, investigation or proceeding by any governmental
agency or body, commenced or threatened, in each case whether or not such
Person is a party, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under sub-paragraph (i) or (ii)
above;
provided, however, that this indemnity agreement does not apply to any Holder or
Underwriter with respect to any loss, liability, claim, damage, judgment or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission (A) made in reliance upon and in conformity with
written information furnished to the Company by such Holder or Underwriter
expressly for use in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto) or (B) if such untrue
statement or omission or alleged untrue statement or omission was corrected in
an amended or supplemented Registration Statement or Prospectus and the Company
had furnished copies thereof to the underwriter or selling Holder from which the
Person asserting such loss, liability, claim, damage, judgment or expense
purchased the securities that are the subject thereof prior to the date of sale
by such underwriter or selling Holder to such Person.
(b) Indemnification by Holders, Underwriters, Etc. (i) Each selling
Holder severally agrees to indemnify and hold harmless the Company, each
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Underwriter and the other selling Holders, and each of their respective
partners, directors, officers and employees (including each officer of the
Company who signed the Registration Statement), and each Person, if any, who
controls the Company, any Underwriter or any other selling Holder within the
meaning of Section 15 of the Securities Act, against any and all losses,
liabilities, claims, damages, judgments and expenses described in the indemnity
contained in paragraph (a) of this Section (provided that any settlement of the
type described therein is effected with the written consent of such selling
Holder), as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statement or omissions, made in a Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such selling Holder expressly for use in such Registration
Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto); provided, however, that an indemnifying Holder shall not be
required to provide indemnification in any amount in excess of the amount by
which (A) the total price at which the Registrable Securities sold by such
indemnifying Holder and its affiliated indemnifying Holders and distributed to
the public were offered to the public exceeds (B) the amount of any damages
which such indemnifying Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. The
Company shall be entitled to receive indemnification and contribution from or on
behalf of underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution to the same extent as
provided above with respect to information so furnished in writing by such
Persons specifically for inclusion in any prospectus or registration statement.
(c) Conduct of Indemnification Proceedings. Each indemnified party or
parties shall give reasonably prompt notice to each indemnifying party or
parties of any action or proceeding commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying
party or parties shall not relieve it or them from any liability which it or
they may have under this indemnity agreement, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. If
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the indemnifying party or parties so elects within a reasonable time after
receipt of such notice, the indemnifying party or parties may assume the defense
of such action or proceeding at such indemnifying party's or parties' expense
with counsel chosen by the indemnifying party or parties and approved by the
indemnified party defendant in such action or proceeding, which approval shall
not be unreasonably withheld; provided, however, that, if such indemnified party
or parties reasonably determine that a conflict of interest exists and that
therefore it is advisable for such indemnified party or parties to be
represented by separate counsel or that, upon advice of counsel, there may be
legal defenses available to it or them which are different from or in addition
to those available to the indemnifying party, then the indemnifying party or
parties shall not be entitled to assume such defense and the indemnified party
or parties shall be entitled to separate counsel (limited in each jurisdiction
to one counsel for all Underwriters and another counsel for all other
indemnified parties under this Agreement) at the indemnifying party's or
parties' expense. If an indemnifying party or parties is not so entitled to
assume the defense of such action or does not assume such defense, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party or parties will pay the reasonable fees and expenses of
counsel for the indemnified party or parties (limited in each jurisdiction to
one counsel for all Underwriters and another counsel for all other indemnified
parties under this Agreement). In such event, however, no indemnifying party or
parties will be liable for any settlement effected without the written consent
of such indemnifying party or parties; provided, however, that if at any time an
indemnified party or parties shall have requested an indemnifying party or
parties to reimburse the indemnified party or parties for fees and expenses of
counsel as contemplated by this paragraph, the indemnifying party or parties
shall be liable for any settlement of any proceeding effected without the
written consent of such indemnifying party or parties if (i) such settlement is
entered into more than 15 business days after receipt by such indemnifying party
or parties of the aforesaid request accompanied by supporting documents
reasonably satisfactory to the indemnifying party or parties and (ii) such
indemnifying party or parties shall not have reimbursed the indemnified party or
parties in accordance with such request prior to the date of such settlement. If
an indemnifying party is entitled to assume, and assumes, the defense of such
action
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or proceeding in accordance with this paragraph, such indemnifying party or
parties shall not, except as otherwise provided in this subsection (c), be
liable for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action or proceeding.
(d) Contribution. (i) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms in respect of any
losses, liabilities, claims, damages, judgments and expenses suffered by an
indemnified party referred to therein, each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, liabilities,
claims, damages, judgments and expenses in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and of the liable
selling Holders (including, in each case, that of their respective officers,
directors, employees and agents) on the other in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages,
judgments or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and of the liable selling
Holders (including, in each case, that of their respective officers, directors,
employees and agents) on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or by or on behalf of the
selling Holders, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
liabilities, claims, damages, judgments and expenses referred to above shall be
deemed to include, subject to the limitations set forth in paragraph (c) of this
Section, any legal or other fees or expenses reasonably incurred by such party
in connection with investigating or defending any action or claim.
(ii) The Company and each Holder of Registrable Securities agree that
it would not be just and equitable if contribution pursuant to this paragraph
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(d) were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in
sub-paragraph (i) above. Notwithstanding the provisions of this paragraph (d),
in the case of distributions to the public, an indemnifying Holder shall not be
required to contribute any amount in excess of the amount by which (A) the total
price at which the Registrable Securities sold by such indemnifying Holder and
its affiliated indemnifying Holders and distributed to the public were offered
to the public exceeds (B) the amount of any damages which such indemnifying
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of fraudulent
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.
(iii) For purposes of this Section, each Person, if any, who controls
a Holder or an Underwriter within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such Holder or Underwriter;
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each Person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, shall have the same rights to
contribution as the Company.
Section 6. MISCELLANEOUS.
(a) No Inconsistent Agreements. The Company has not entered into nor
will the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
On or prior to the date hereof, the Company has not entered into any other
agreement, except for an agreement with Bessemer and members of the BCP Group
(as such term is defined in the Stockholders Agreement (as such term is defined
in the Subscription Agreement)) and an agreement with the Management Investors
made pursuant to the Management Agreements, with respect to its securities
granting any registration rights to any Person, and the Company has not entered
into, except for an agreement with the Management Investors made pursuant to the
Management Agreements (none of which in any event provide for piggy-back
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registration of securities other than securities of Corresponding Class), and
will not on or after the date of this Agreement enter into any, or modify in any
manner adverse to the Holders any existing, agreement with any Person granting
any piggy-back registration rights with respect to any Registration Statement
required to be filed or maintained hereunder; provided, however, that nothing in
this sentence shall prohibit the Company from granting registration rights to
any Person (including granting piggy-back registration rights with respect to
any Registration Statement required to be filed or maintained hereunder) if, any
only if, any registration pursuant to such registration rights permits the
Holders of Registrable Securities of a Corresponding Class to participate in any
such registration on the terms set forth in Section 2(b) and such piggy-back
registration rights with respect to any registration required to be effected
pursuant hereto relate only to securities of a Corresponding Class to those
actually registered in any such registration hereunder, and contain priority in
registration provisions no more favorable to the beneficiaries of such
piggy-back registration rights who may participate in any registration initiated
pursuant to Section 2(a) or in any registration initiated pursuant to Section
2(b) in which Holders may participate than those contained in Section 2(b)(ii)
with respect to Holders of Registrable Securities participating in any
registration not initiated pursuant to this Agreement. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of (w) the Majority
Holders of each Class of Registrable Securities affected thereby then
outstanding, (x) in the event that the DLJ Trigger has not yet occurred or the
DLJ Holders own Warrants and Common Shares amounting to (taking into account all
Warrant Shares issuable upon exercise of all Warrants held by the DLJ Holders)
at least 5% of the Common Shares outstanding immediately following the
Acquisition, of the DLJ Holders, (y) in the event that the GS Trigger has not
yet occurred, or the GS Holders own Warrants and Common Shares amounting to
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(taking into account all Warrant Shares issuable upon exercise of all Warrants
held by the GS Holders) at least 5% of the Common Shares outstanding immediately
following the Acquisition, of the GS Holders, and, (z) in case of amendments,
modifications, supplements, waivers or consents relating to or affecting the
provisions of Sections 2(e), 2(f), 4(k), 4(m) or this sentence or otherwise
adversely affecting the rights of DLJSC or GS set forth herein, of DLJSC or GS,
as the case may be; provided, however, that nothing herein shall prohibit any
amendment, modification, supplement or waiver the effect of which is limited
only to those Holders who have agreed to such amendment, modification,
supplement or waiver.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered first
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
paragraph (c), which address initially is, with respect to each Holder as of the
date hereof, the address set forth next to such Holder's name on the signature
pages of the Subscription Agreement, and with respect to each Holder who becomes
such after the date hereof, the address of such Holder in the stock or warrant
records of the Company, and, in the case of any DLJ Holder, with a copy to
Wachtell, Lipton, Rosen & Katz, 299 Park Avenue, New York, New York 10171,
Attention: Daniel A. Neff, Esq., and, in the case of any GS Holder, with a copy
to Fried, Frank, Harris, Shriver & Jacobson, One New York Plaza, New York, New
York 10004, Attention: Stuart Z. Katz, Esq. or (ii) if to the Company initially
at Bessemer Securities Corporation, 630 Fifth Avenue, New York, New York 10111,
Attention: Robert D. Lindsay, and thereafter at such other address, notice of
which is given in accordance with the provisions of this paragraph (c), with a
copy to Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, 47th Floor,
New York, New York 10019, Attention: Alan C. Stephenson, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; four Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day if timely delivered to a courier guaranteeing overnight
delivery.
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Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the trustee, if any,
under the indenture for the Exchange Debt, at the address specified in such
indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without the need for an express assignment, subsequent
Holders; provided, however, that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities except in
accordance with the terms of the Subscription Agreement. If any successor,
assignee or transferee of any Holder shall acquire Registrable Securities in any
manner whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and, if such acquisition was effected in accordance with the
terms and provisions of the Subscription Agreement, such person shall be
entitled to receive the benefits hereof.
(e) Recapitalizations, Exchanges, Etc., Affecting Registrable
Securities. The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to any Class of Registrable Securities, to any and all
securities or capital stock of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in exchange for, or in substitution of such Class
of Registrable Securities, by reason of any dividend, split, issuance, reverse
split, combination, recapitalization, reclassification, merger, consolidation or
otherwise. Upon the occurrence of any of such events, amounts hereunder shall be
appropriately adjusted if necessary.
(f) Third Party Beneficiary. DLJSC and GS shall be intended third
party beneficiaries to the agreements made hereunder between the Company and the
Holders and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights
hereunder.
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(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but all of which counterparts, taken together, shall constitute
one and the same instrument.
(h) Descriptive Headings, Etc. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole (including the Schedules and Exhibits hereto)
and not to any particular provision of this Agreement, and Article, Section,
paragraph, Exhibit and Schedule references are to the Articles, Sections,
paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified;
(4) the word "including" and words of similar import when used in this Agreement
shall mean "including, without limitation," unless otherwise specified; (5) "or"
is not exclusive; and (6) provisions apply to successive events and
transactions.
(i) Severability. In the event that any one or more of the provisions,
paragraphs, words, clauses, phrases or sentences 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, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any way
impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAW PRINCIPLES THEREOF).
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(k) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement in any
court of the United States or any State thereof having jurisdiction. Any remedy
under this paragraph (j) is subject to certain equitable defenses and to the
discretion of the court before which any proceedings therefor may be brought.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, premises,
warranties or undertakings, other than those set forth, or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities sold, directly or indirectly, pursuant to the
Subscription Agreement. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
B E ACQUISITION CORPORATION
By: /s/ Robert D. Lindsay
---------------------------------------------
Name:
Title:
DLJ MERCHANT BANKING FUNDING, INC.
By: /s/ Charles J. Hendrickson
---------------------------------------------
Name: Charles J. Hendrickson
Title: Director and Treasurer
DLJ MERCHANT BANKING PARTNERS, L.P.
by DLJ MERCHANT BANKING, INC.
its managing general partner
By: /s/ Gary B. Appel
-------------------------------------------
Name: Gary B. Appel
Title: Managing Director
DLJ INTERNATIONAL PARTNERS, C.V.
by DLJ OFFSHORE MANAGEMENT, N.V.,
its resident general partner
by PIERSON TRUST (CURACAO) N.V.,
its managing director
By: /s/ Vivian-V, Ersilia/Karel Ph. Romer
----------------------------------------
Name: Vivian-V, Ersilia/Karel Ph. Romer
Title: Attorneys-in-fact
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GS CAPITAL PARTNERS, L.P
by GS ADVISORS, L.P.,
its general partner
by GS ADVISORS, Inc.,
its general partner
By: /s/ Richard H. Friedman
-------------------------------------
Name: Richard H. Friedman
Title: President
STONE STREET FUND 1992, L.P.
by STONE STREET PERFORMANCE CORP.,
its managing general partner
By: /s/ C.H. Skodinski
----------------------------------------
Name: C.H. Skodinski
Title: Vice President
BRIDGE STREET FUND 1992, L.P.
by STONE STREET PERFORMANCE CORP.,
its general partner
By: /s/ C.H. Skodinski
----------------------------------------
Name: C.H. Skodinski
Title: Vice President
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CHEMICAL EQUITY ASSOCIATES,
A CALIFORNIA LIMITED PARTNERSHIP
by CHEMICAL VENTURE PARTNERS,
its general partner
By: /s/ Arnold L. Chaukin
------------------------------------
Name: Arnold L. Chaukin
Title: General Partner
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AMENDMENT NO. 1 dated as of June 5, 1995, to
REGISTRATION RIGHTS AGREEMENT dated as of October 9,
1992, among BCP/ESSEX HOLDINGS, INC. (as successor by
merger to B E Acquisition Corporation) ("Holdings")
and the Persons (other than Holdings) listed on the
signature pages hereof (the "Investors").
Holdings and the Investors are parties to a Registration Rights
Agreement dated as of October 9, 1992, (the "Registration Rights Agreement").
Holdings and the Investors wish to amend a provision of the Registration Rights
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 Registration Rights Agreement.
Section 2. Amendment to Section 1(a) of the Registration Rights
Agreement. Section 1(a) of the Registration Rights Agreement is hereby amended
by amending the definition of "Registrable Securities" in its entirety to read
as follows:
'"Registrable Securities" shall mean the Warrants and the Common
Shares (but shall not include any Warrant or any Common Share, (i) which
has been effectively registered under the Securities Act and disposed of in
accordance with a Registration Statement covering such security or (ii)
which has been distributed to the public pursuant to Rule 144 under the
Securities Act, and, in each such case, the certificate or other evidence
of ownership of which does not and is not required to bear any legend
previously required by the Subscription Agreement, or any other legend of
similar import and is not subject to any stop transfer order).'
Section 3. Counterparts. This Amendment No. 1 may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered 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. 1 are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions hereof.
<PAGE>
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. 1 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 shall not invalidate or
render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to be duly executed on the date first written above.
BCP/ESSEX HOLDINGS, INC.
by /s/ David A. Owen
Name: David A. Owen
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., A its
general partner,
by /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: President
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STONE STREET FUND 1992, L.P.
by STONE STREET PERFORMANCE CORP.,
its general partner
by /s/ C.H. Skodinski
Name: C.H. Skodinski
Title: Vice President
BRIDGE STREET FUND 1992, L.P.
by STONE STREET PERFORMANCE CORP.,
its managing general partner
by /s/ C.H. Skodinski
Name: C.H. Skodinski
Title: Vice President
DLJ MERCHANT BANKING FUNDING, INC.
by /s/ Thomas E. Siegler
Name: Thomas E. Siegler
Title: Secretary
DLJ FIRST ESC L.L.C.,
by DLJ LBO Plans Management Corporation,
by /s/ Thomas E. Siegler
Name: Thomas E. Siegler
Title: Vice President and Secretary
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DLJ INTERNATIONAL PARTNERS, C.V.
by DLJ MERCHANT BANKING, INC., its
advisory general partner
by /s/ Thomas E. Siegler
Name: Thomas E. Siegler
Title: Secretary and Treasurer
DLJ MERCHANT BANKING PARTNERS, L.P.
by DLJ MERCHANT BANKING,
INC., its managing general partner
by /s/ Thomas E. Siegler
Name: Thomas E. Siegler
Title: Secretary and Treasurer
CHEMICAL EQUITY ASSOCIATES, A
CALIFORNIA LIMITED PARTNERSHIP
by CHEMICAL VENTURE PARTNERS,
its general partner
by /s/ Bruce J. Reed
Name:
Title:
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EXHIBIT 3
Essex International Inc.
Common Stock
(par value $.01 per share)
Underwriting Agreement
(U.S. Version)
April 17, 1997
Goldman, Sachs & Co.,
Smith Barney Inc.,
Donaldson, Lufkin & Jenrette
Securities Corporation,
Lehman Brothers Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Essex International Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 2,400,000 shares of Common Stock, par value $.01 per share ("Stock"), of the
Company and the stockholders of the Company named in Schedule II hereto (the
"Selling Stockholders") propose, subject to the terms and conditions stated
herein, to sell to the Underwriters (a) an aggregate of 1,029,823 shares of
Stock and (b) an aggregate of 1,762,805 warrants to purchase shares of Stock
and, at the election of the Underwriters, up to (a) 553,427 additional shares of
Stock and (b) 205,740 additional warrants to purchase shares of Stock. The
aggregate of 3,429,823 shares to be sold by the Company and the Selling
Stockholders is herein called the "Firm Shares", the aggregate of 1,762,805
warrants to be sold by certain Selling Stockholders is herein called the "Firm
Warrants", the aggregate of 553,427 additional shares to be sold by certain
Selling Stockholders is herein called the "Optional Shares" and the aggregate of
205,740 additional warrants to be sold by certain Selling Stockholders is herein
called the "Optional Warrants". The Firm Warrants and the Optional Warrants that
the Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the Warrants, and the Firm Shares, the Optional Shares that
the Underwriters elect to purchase pursuant to Section 2 hereof and the shares
of Stock to be issued upon the redemption of the Warrants by the Company as
hereinafter provided are herein collectively called the "Shares".
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for (a) the sale by the
Company and certain Selling Stockholders of up to a total of 995,813 shares of
Stock and (b) the sale by certain Selling Stockholders of up to a total of
492,136 warrants (the shares of Stock referred to in (a), together with the
shares of Stock to be issued upon the redemption of the warrants by the Company,
are herein collectively referred to as the "International Shares"), including
the overallotment option thereunder, through arrangements with certain
underwriters outside the United States (the "International Underwriters"), for
whom Goldman Sachs International, Smith Barney Inc., Donaldson, Lufkin &
Jenrette Securities Corporation and Lehman Brothers International (Europe) are
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acting as lead managers. Anything herein or therein to the contrary
notwithstanding, the respective closings under this Agreement and the
International Underwriting Agreement are hereby expressly made conditional on
one another. The Underwriters hereunder and the International Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages. Except as used in Sections 2, 4, 5, 11 and 13 herein, and
except as the context may otherwise require, references hereinafter to the
Shares shall include all the shares of Stock which may be sold pursuant to
either this Agreement or the International Underwriting Agreement, including any
shares of Stock to be issued by the Company upon the redemption of the Warrants,
references hereinafter to the Warrants shall include all the warrants which may
be sold pursuant to either this Agreement or the International Underwriting
Agreement and references herein to any prospectus, whether in preliminary or
final form, and whether as amended or supplemented, shall include both the U.S.
and the international versions thereof.
1. (a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-22043)
(the "Initial Registration Statement") in respect of the Shares has been
filed with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding exhibits
thereto, delivered to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act is hereinafter called a "Preliminary Prospectus"; the various
parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 6(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Registration Statement, if any, at the time it became or
hereafter becomes effective, each as amended as of such effective date, are
hereinafter collectively called the "Registration Statement"; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not 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, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or
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omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Goldman,
Sachs & Co. expressly for use therein or by a Selling Stockholder expressly
for use in the preparation of the answers therein to Items 7 and 11(l) of
Form S-1;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through Goldman, Sachs & Co. expressly for use therein or
by a Selling Stockholder expressly for use in the preparation of the
answers therein to Items 7 and 11(l) of Form S-1;
(iv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any change in the capital stock (other than changes resulting from the
exercise of options outstanding as of the date of this Agreement) or
long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(v) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries;
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; each "Material Subsidiary" (as hereinafter defined") has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; each Material
Subsidiary has been duly qualified as a foreign corporation for the
transaction of business and
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is in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and
"Material Subsidiary" means each entity that would constitute a
"significant subsidiary" of the Company for purposes of Rule 1-02(w) of
Regulation S-X under the Act;
(vii) The Company has an authorized capitalization as set forth in
the Company's Annual Report on Form 10-K for the year ended December 31,
1996, as filed with the Commission, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable; at each Time of Delivery (as defined in
Section 5 below), the Company will have the authorized capitalization as
set forth in the Prospectus, and at each Time of Delivery all of the issued
shares of capital stock of the Company will have been duly and validly
authorized and issued and will be fully paid and non-assessable, will be
free of preemptive and other preferential rights to subscribe for or
purchase shares of Stock granted by the Company or pursuant to an agreement
to which the Company is a party and will conform to the description of
Stock contained in the Prospectus; and all of the issued shares of capital
stock of each Material Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and (except for
directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims,
except as disclosed in the Prospectus;
(viii) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder and under the International Underwriting Agree-
ment have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly
issued and fully paid and non-assessable, will be free of preemptive and
other preferential rights to subscribe for or purchase shares of Stock
granted by the Company or pursuant to an agreement to which the Company is
a party and will conform to the description of the Stock contained in the
Prospectus; and no holder of securities of the Company has rights, pursuant
to any agreement with the Company or otherwise, to register such securities
under any registration statement filed with the Commission except as
disclosed in the Prospectus;
(ix) The unissued shares of Stock issuable upon the redemption of
the Warrants have been duly and validly authorized and reserved for
issuance, and at the Time of Delivery with respect to such shares, such
shares will be delivered in accordance with the provisions of this
Agreement and will be duly and validly issued, fully paid and
non-assessable, will be free of preemptive and other preferential rights to
subscribe for or purchase shares of Stock granted by the Company or
pursuant to an agreement to which the Company is a party and will conform
to the description of the Stock contained in the Prospectus;
(x) The issue and sale of the Shares to be sold by the Company
hereunder and under the International Underwriting Agreement and the
compliance by the Company with all of the provisions of this Agreement and
the International Underwriting Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company
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or any of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and
sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement and the International Underwriting
Agreement, except the registration under the Act of the Shares,
registration of the Stock under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the listing of the Shares on the New York
Stock Exchange, Inc. (the "Exchange");
(xi) Neither the Company nor any of its subsidiaries is (A) in
violation of its Certificate of Incorporation or By-laws or (B) in default
in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound except, in the
case of this clause (B), for such defaults that would not, individually or
in the aggregate, have, or reasonably be expected to have in the future,
a material adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole;
(xii) The statements set forth in the Prospectus, under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock and the Warrants will be at
each Time of Delivery, and under the captions "Certain United States
Federal Tax Consequences To Non-United States Holders of Common Stock",
"Certain Relationships and Related Party Transactions", "Description of
Certain Indebtedness", "Shares Eligible for Future Sale" and
"Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein are, accurate, complete and fair;
(xiii) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which have a reasonable possibility of
success and which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(xiv) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
and
(xv) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
(b) Each of the Selling Stockholders, severally and not jointly,
represents and warrants to, and agrees with, each of the Underwriters and the
Company that:
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(i) All consents, approvals, authorizations and orders neces-
sary for the execution and delivery by such Selling Stockholder of this
Agreement, the International Underwriting Agreement, the Power of Attorney
and the Custody Agreement hereinafter referred to, and for the sale and
delivery of the Shares or Warrants to be sold by such Selling Stockholder
hereunder and under the International Underwriting Agreement, have been
obtained; and such Selling Stockholder has full right, power and authority
to enter into this Agreement, the International Underwriting Agreement, the
Power of Attorney and the Custody Agreement and to sell, assign, transfer
and deliver the Shares or Warrants to be sold by such Selling Stockholder
hereunder and under the International Underwriting Agreement;
(ii) The sale of the Shares or Warrants to be sold by such
Selling Stockholder hereunder and under the International Underwriting
Agreement and the compliance by such Selling Stockholder with all of the
provisions of this Agreement, the International Underwriting Agreement, the
Power of Attorney and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any statute or any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which such Selling Stockholder is a party or by which such Selling
Stockholder is bound, or to which any of the property or assets of such
Selling Stockholder is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or By-laws
of such Selling Stockholder if such Selling Stockholder is a corporation,
the Partnership Agreement of such Selling Stockholder if such Selling
Stockholder is a partnership, any other constituent documents of such
Selling Stockholder or any order to which such Selling Stockholder is bound
or any rule or regulation of any court or governmental agency or body
having jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder;
(iii) Such Selling Stockholder has, and immediately prior to each
Time of Delivery such Selling Stockholder will have, good and valid title
to the Shares or Warrants to be sold by such Selling Stockholder hereunder
and under the International Underwriting Agreement, free and clear of all
liens, encumbrances, equities or claims; and, upon delivery of any such
Shares or Warrants and payment therefor pursuant hereto and to the
International Underwriting Agreement, good and valid title to such Shares
or Warrants, free and clear of all liens, encumbrances, equities or claims,
will pass to the several Underwriters or the International Underwriters, as
the case may be;
(iv) During the period beginning from the date hereof and con-
tinuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose of,
including, without limitation, through the entry into a cash-settled
derivative instrument, except as provided hereunder or under the
International Under- writing Agreement, any shares of Stock, any securities
of the Company that are substantially similar to the Shares, including but
not limited to any securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (other than upon the conversion or
exchange of convertible or exchangeable securities outstanding as of the
date of this Agreement), without the prior written consent of Goldman,
Sachs & Co.;
(v) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
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(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information relating to such Selling Stockholder furnished to
the Company by such Selling Stockholder expressly for use therein, such
Preliminary Prospectus and the Registration Statement did, and the
Prospectus and any further amendments or supplements to the Registration
Statement and the Prospectus, when they become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or at
the First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof);
(viii) Certificates in negotiable form representing all of the
Shares and Warrants to be sold by such Selling Stockholder hereunder and
under the International Underwriting Agreement have been placed in custody
under a Custody Agreement, in the form heretofore furnished to you (the
"Custody Agreement"), duly executed and delivered by such Selling
Stockholder to The Bank of New York, as custodian (the "Custodian"), and
such Selling Stockholder has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you (the "Power of
Attorney"), appointing the persons indicated in Schedule II hereto, and
each of them, as such Selling Stockholder's attorneys-in-fact (the
"Attorneys-in-Fact") with authority to execute and deliver this Agreement
and the International Underwriting Agreement on behalf of such Selling
Stockholder, to determine the purchase price to be paid by the Underwriters
and the International Underwriters to the Selling Stockholders as provided
in Section 2 hereof, to authorize the delivery of the Shares or Warrants to
be sold by such Selling Stockholder hereunder and otherwise to act on
behalf of such Selling Stockholder in connection with the transactions
contemplated by this Agreement, the International Underwriting Agreement
and the Custody Agreement; and
(ix) The Shares or Warrants represented by the certificates held
in custody for such Selling Stockholder under the Custody Agreement are
subject to the interests of the Underwriters hereunder and the
International Underwriters under the International Underwriting Agreement;
the arrangements made by such Selling Stockholder for such custody, and the
appointment by such Selling Stockholder of the Attorneys-in-Fact by the
Power of Attorney, are to that extent irrevocable; the obligations of the
Selling Stockholders hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling Stockholder
or, in the case of an estate or trust, by the death or incapacity of any
executor or trustee or the termination of such estate or trust, or in the
case of a partnership or corporation, by the dissolution of such
partnership or corporation, or by the occurrence of any other event; if any
individual Selling Stockholder or any such executor or trustee should die
or become incapacitated, or if any such estate or trust should be
terminated, or if any such partnership or corporation should be dissolved,
or if any other such event should occur, before the delivery of the Shares
or Warrants hereunder, certificates representing the Shares or Warrants
shall be delivered by or on behalf of such Selling Stockholder in
accordance with the terms and conditions of this Agreement, the
International Underwriting Agreement and of the Custody
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Agreements, and actions taken by the Attorneys-in-Fact pursuant to the
Powers of Attorney shall be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred, regardless of
whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall
have received notice of such death, incapacity, termination, dissolution or
other event.
2. Subject to the terms and conditions herein set forth, (a) the
Company and each of the Selling Stockholders agree, severally and not jointly,
to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company and each of the Selling
Stockholders, at a purchase price per share of $15.98, the number of Firm Shares
(to be adjusted by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to be sold by the Company and
each of the Selling Stockholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the aggregate number
of Firm Shares to be purchased by such Underwriter as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the aggregate number of Firm Shares to be purchased by all of the Underwriters
from the Company and all of the Selling Stockholders hereunder, (b) certain
Selling Stockholders agree, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from such Selling Stockholders, at a purchase price of $10.6077684 per
Warrant, the number of Firm Warrants (to be adjusted by you so as to eliminate
the redemption of a Warrant for a fractional share) determined by multiplying
the aggregate number of Firm Warrants to be sold by such Selling Stockholders as
set forth opposite their respective names in Schedule II hereto by a fraction,
the numerator of which is the aggregate number of Firm Warrants to be purchased
by such Underwriter as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the aggregate number of all
Firm Warrants to be purchased by all the Underwriters from such Selling
Stockholders and (c) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Shares and Optional Warrants as
provided below, each of the Selling Stockholders agrees, severally and not
jointly, to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from each of the Selling
Stockholders, at the purchase price per share set forth in clause (a) of this
Section 2 or at the purchase price per Warrant set forth in clause (b) of this
Section 2, that portion of the number of Optional Shares and Optional Warrants
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares and the redemption of a Warrant for a fractional
share) determined (i) in the case of Optional Shares, by multiplying such number
of Optional Shares by a fraction the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder and (ii) in the case of Optional Warrants, by
multiplying such number of Optional Warrants by a fraction the numerator of
which is the maximum number of Optional Warrants which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the maximum number of Optional
Warrants that all of the Underwriters are entitled to purchase hereunder.
Each of the Selling Stockholders, as and to the extent indicated in
Schedule II hereto, hereby grants, severally and not jointly, to the
Underwriters the right to purchase at their election up to 553,427 Optional
Shares and up to 205,740 Optional Warrants, at the purchase price per share or
per Warrant set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares (including for this purpose all of
the shares of Stock to be received upon redemption of the Firm Warrants). Any
such election to purchase Optional Shares shall be made in proportion to the
maximum number of Optional Shares to be sold by each Selling Stockholder as set
forth in Schedule II hereto, it being understood that for the purpose of this
calculation the Optional Warrants shall be treated as if they had been redeemed
for shares of Stock and that the Optional Shares and the Optional Warrants shall
be purchased in the same proportion as the total number of Optional Shares
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bears to the total number of shares of Stock to be received upon redemption of
all the Optional Warrants. Any such election to purchase Optional Shares and
Optional Warrants may be exercised only by written notice from you to the
Attorneys-in-Fact, given within a period of 30 calendar days after the date
of this Agreement and setting forth the aggregate number of Optional Shares and
Optional Warrants to be purchased and the date on which such Optional Shares and
Optional Warrants are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery (as defined in Section 5 hereof) or,
unless you and the Attorneys-in-Fact otherwise agree in writing, earlier than
one or later than ten business days after the date of such notice.
3. The Company hereby confirms its engagement of Smith Barney Inc.
as, and Smith Barney Inc. hereby confirms its agreement with the Company to
render services as, a "qualified independent underwriter" within the meaning of
Paragraph (b)(15) of Conduct Rule 2720 of the National Association of Securities
Dealers, Inc. (the "NASD") with respect to the offering and sale of the Shares.
Smith Barney Inc., in its capacity as qualified independent underwriter and not
otherwise, is referred to herein as the "QIU".
4. Upon the authorization by you of the release of the Firm Shares
(including for this purpose all the shares of Stock to be received upon
redemption of the Firm Warrants), the several Underwriters propose to offer the
Firm Shares (including for this purpose all the shares of Stock to be received
upon redemption of the Firm Warrants) for sale upon the terms and conditions set
forth in the Prospectus.
5. (a) The Shares and Warrants to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as Goldman, Sachs & Co. may request upon at least
forty-eight hours' prior notice to the Company and the Selling Stockholders
shall be delivered by or on behalf of the Company and the Selling Stockholders
to Goldman, Sachs & Co., for the account of such Underwriter, against payment by
or on behalf of such Underwriter of the purchase price therefor by certified or
official bank check or checks or by wire transfer, payable to the order of the
Company and the Custodian in Federal Funds (same day). The delivery of the
Shares to Goldman, Sachs & Co. pursuant to the prior sentence may be made, at
the option of Goldman, Sachs & Co., through the facilities of The Depository
Trust Company ("DTC"). The Company will cause the certificates representing the
Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004,
or at the office of DTC or its designated custodian, as the case may be (the
"Designated Office"). The time and date of such delivery and payment shall be,
with respect to the Firm Shares and the Firm Warrants, 9:30 a.m., New York City
time, on April 23, 1997 or such other time and date as Goldman, Sachs & Co. and
the Company may agree upon in writing, and, with respect to the Optional Shares
and the Optional Warrants, 9:30 a.m., New York City time, on the date specified
by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co. of
the Underwriters' election to purchase such Optional Shares and the Optional
Warrants, or such other time and date as Goldman, Sachs & Co. and the
Attorneys-in-Fact may agree upon in writing. Such time and date for delivery of
the Firm Shares and the Firm Warrants is herein called the "First Time of
Delivery", such time and date for delivery of the Optional Shares and the
Optional Warrants, if not the First Time of Delivery, is herein called the
"Second Time of Delivery", and each such time and date for delivery is herein
called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Shares and the Warrants and any additional documents
requested by the Underwriters pursuant to Section 8(l) hereof will be delivered
at the offices of Sullivan & Cromwell, 125 Broad Street, New York, New York
10004 (the
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"Closing Location"), and the Shares will be delivered at the Designated Office,
all at each Time of Delivery. A meeting will be held at the Closing Location at
2:00 p.m., New York City time, on the New York Business Day next preceding each
Time of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 5, "New York Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
6. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act and, if the Company elects to rely upon Rule 462(b) under
the Act, to file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Washington,
D.C. time on the date of this Agreement and to pay to the Commission at
such time of filing the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act; to make no further amendment or
any supplement to the Registration Statement or Prospectus which shall
be disapproved by you promptly after reasonable notice thereof; to
advise you, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish you copies thereof; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or prospectus, of the suspension
of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus in
New York City in such quantities as you may reasonably request, and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to
amend or supplement the
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Prospectus in order to comply with the Act, to notify you and upon your
request to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time
nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of
the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, including, without limitation, through the entry into a
cash-settled derivative instrument, except as provided hereunder and
under the International Underwriting Agreement, any shares of Stock,
any securities of the Company that are substantially similar to the
Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than
(i) pursuant to acquisitions or other business transactions where the
Company uses shares of Stock as all or a portion of the consideration
for the transactions provided that if the aggregate number of shares of
Stock issued in any such acquisitions or transactions exceeds 1.3
million, or if the number of shares of Stock issued in any acquisition
or transaction, together with the number of shares of Stock issued in
any other acquisitions or transactions after the date of this Agreement
exceeds 1.3 million, the Company shall cause the person or persons
acquiring such shares of Stock to comply with this Section 6(e), or
(ii) pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without the prior
written consent of Goldman, Sachs & Co.; and to enforce its rights
under Section 6.04 of the Management Stockholders Agreement and Section
3(a) of the Registration Rights Agreement (each as defined in the
Prospectus), to use its reasonable best efforts to cause each other
party to such agreements to comply therewith and not to grant any
waivers or consents to non-compliance with such agreements insofar as
such agreements relate to registration under the Act, in each case
unless and to the extent that it shall have obtained the prior written
consent of Goldman, Sachs & Co.;
(f) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each
of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effective date of the Registration
Statement), consolidated summary financial information of the Company
and its subsidiaries for such quarter in reasonable detail;
(g) During a period of three years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other)
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furnished to stockholders, and to deliver to you (i) as soon as they
are available, copies of any reports and financial statements furnished
to or filed with the Commission or any national securities exchange on
which any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial condition
of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement and the International
Underwriting Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the Exchange;
(j) To file with the Commission such reports on Form SR as may
be required by Rule 463 under the Act;
(k) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act; and
(l) On or prior to any Time of Delivery, to redeem each
Warrant to be sold to the Underwriters at such Time of Delivery for
.663815294118 shares of Stock; each share of Stock to be duly
authorized, validly issued, fully paid and non-assessable and free and
clear of all liens, encumbrances, equities or claims; and to deliver
such shares of Stock to the Underwriters as provided in Section 5
hereof.
7. The Company covenants and agrees with each of the Selling
Stockholders and with the several Underwriters and each of the Selling
Stockholders, severally, covenants and agrees with the Company and the
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) all expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 6(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification; (iii) all
fees and expenses in connection with listing the Shares on the Exchange; (iv)
the filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the NASD of the
terms of the sale of the Shares, including the fees and expenses of a "qualified
independent underwriter", as defined in Conduct Rule 2720 of the NASD; (v) the
cost of preparing stock certificates; (vi) the cost and charges of any transfer
agent or registrar; (vii) all other costs and expenses incident to the
performance of its obligations hereunder (not including the fees and expenses of
counsel to the Selling Stockholders) which are not otherwise specifically
provided for in this Section; (viii) fees and expenses of the Attorneys-in-Fact
and the Custodian; (ix) all expenses and taxes incident to the sale and delivery
of the Shares and Warrants to be sold to the Underwriters; and (x) all other
costs and expenses incident to the performance by the Selling Stockholders of
their
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obligations hereunder (other than underwriting commissions and discounts). In
connection with Clause (ix) of the preceding sentence, Goldman, Sachs & Co.
agrees to pay New York State stock transfer tax, and the Company agrees to
reimburse Goldman, Sachs & Co. for associated carrying costs if such tax payment
is not rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that the Company shall bear, and the Selling
Stockholders shall not be required to pay or to reimburse the Company for, the
cost of any other matters not directly relating to the sale and purchase of the
Shares pursuant to this Agreement, and that, except as provided in this Section,
and Sections 9 and 13 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Shares
and the Warrants to be delivered at each Time of Delivery, shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company and of the Selling Stockholders herein are, at
and as of such Time of Delivery, true and correct, the condition that the
Company and the Selling Stockholders shall have performed all of its and their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 6(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall
have furnished to you such opinion or opinions, dated such Time of
Delivery, with respect to the matters covered in paragraphs (i), (ii)
and (vii) of subsection (c) below and the final paragraph of subsection
(d) below as well as such other related matters as you may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
(c) Debra F. Minott, General Counsel for the Company, shall
have furnished to you her written opinion (a draft of such opinion is
attached as Annex II(a) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly
authorized and issued and are fully paid and non-assessable;
the Shares are free of preemptive and other preferential
rights to subscribe for or purchase shares of Stock granted by
the Company or pursuant to an agreement to which the Company
is a party and the Shares conform to the description of the
Stock contained in the Prospectus;
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<PAGE>
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material
liability or disability by reason of failure to be so
qualified in any such jurisdiction (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company, provided that
such counsel shall state that she believes that both you and
she are justified in relying upon such opinions and
certificates);
(iv) Each Material Subsidiary is duly incorporated
and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and all
of the issued shares of capital stock of each Material
Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable, and (except for directors'
qualifying shares) are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims, other
than as described in the Prospectus, including the liens
resulting from the Restated Credit Agreement (as defined in
the Prospectus);
(v) Essex has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which it owns
or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel
and in respect of matters of fact upon certificates of
officers of the Company or Essex, provided that such counsel
shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(vi) To such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which have a
reasonable possibility of success and which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse
effect on the current or future consolidated financial
position, stockholders' equity, cash flows or results of
operations of the Company and its subsidiaries; and, to such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(vii) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by
the Company;
(viii) The issue and sale of the Shares being delivered
at such Time of Delivery to be sold by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries
is
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<PAGE>
subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of
the Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and
(ix) Neither the Company nor any of its subsidiaries
is (A) in violation of its Certificate of Incorporation or
By-laws or (B) in default in the performance or observance of
any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be
bound except, in the case of this clause (B), for such
defaults that would not, individually or in the aggregate,
have a Material Adverse Effect.
Such counsel shall also state that the Registration Statement and any
amendment made thereto prior to such Time of Delivery, at the time it became
effective, and the Prospectus and any amendment or supplement made thereto prior
to such Time of Delivery, as of its date, the date of such amendment or
supplement and the date the statement is made by such counsel (except the
financial statements and other information of an accounting or financial nature
included therein, as to which such counsel will express no view), appeared on
their face to be appropriately responsive in all material respects to the
requirements of the Act and the applicable rules and regulations thereunder;
although such counsel will not assume responsibility for the accuracy or
completeness of the statements made in the Registration Statement and
Prospectus, except and provided in subsection (ii) of this Section 8(c) and
except insofar as such statements relate to such counsel; and that the work of
such counsel in connection with such matters and as General Counsel of the
Company did not disclose any information that gave such counsel reason to
believe that the Registration Statement or any amendment made thereto prior to
such Time of Delivery, at the time the Registration Statement or such amendment
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or any amendment or
supplement made thereto prior to such Time of Delivery, at its date, the date of
such amendment or supplement and the date of such counsel's statement, included
an untrue statement of a material fact or omitted 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 (in each case except
for the financial statements and other information of an accounting or financial
nature included therein, as to which such counsel will express no view). Such
counsel shall further state that such counsel does not know of any contracts or
other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration Statement
or the Prospectus which are not filed or described as required.
(d) Cravath, Swaine & Moore, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached as
Annex II(b) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect of paragraphs (i) (except indicating current
due incorporation), (ii) (excluding the validity of any Shares not being
delivered at such Time of Delivery) and (viii) of subsection (c) of this Section
8, and to the effect that;
(i) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body referred to in clause (ix) of
Section 8(c) is required for the issue and sale of the Shares
or the Warrants or the consummation by the Company of the
transactions contemplated by this Agreement and the
International Underwriting Agreement, except the registration
under the Act of the Shares, the registration of the Stock
under the Exchange Act and the listing of the Shares on the
Exchange, each of which has been made or obtained; and the
issue
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and sale of the Shares being delivered at such Time of
Delivery to be sold by the Company and the compliance by the
Company with all of the provisions of this Agreement and the
International Underwriting Agreement and the consummation of
the transaction herein and therein contemplated will not
conflict with or result in breach or violation of any of the
terms or provisions of, or constitute a default under, the
Restated Credit Agreement;
(ii) The statements set forth in the Prospectus under
the caption "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Stock and
the Warrants, and under the captions "Certain United States
Federal Tax Consequences To Non-United States Holders of
Common Stock", "Certain Relationships and Related Party
Transactions", "Description of Certain Indebtedness", and
"Shares Eligible for Future Sale", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair; and
(iii) The Company is not an "investment company" or
an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act.
Such counsel shall also state that the Registration Statement and any
amendment made thereto prior to such Time of Delivery, at the time it became
effective, and the Prospectus and any amendment or supplement made thereto prior
to such Time of Delivery, as of its date, the date of such amendment or
supplement and the date the statement is made by such counsel (except the
financial statements and other information of an accounting or financial nature
included therein, as to which such counsel will express no view), appeared on
their face to be appropriately responsive in all material respects to the
requirements of the Act and the applicable rules and regulations thereunder;
although such counsel will not assume responsibility for the accuracy or
completeness of the statements made in the Registration Statement and
Prospectus, except insofar as such statements relate to such counsel and except
as provided in subsection (ii) of this Section 8(d); and that the work of such
counsel in connection with such matters did not disclose any information that
gave such counsel reason to believe that the Registration Statement or any
amendment made thereto prior to such Time of Delivery, at the time the
Registration Statement or such amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus or any amendment or supplement made thereto prior to such
Time of Delivery, at its date, the date of any amendment or supplement or at the
date of such counsel's statement, included an untrue statement of a material
fact or omitted 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 (in each case except for the financial statements and
information of an accounting or financial nature included therein, as to which
such counsel will express no view).
(e) The respective counsel for GS Capital Partners, L.P., Stone Street
Fund 1992, L.P., Broad Street Fund 1992, L.P., DLJ International Partners, C.V.,
DLJ Merchant Banking Partners, L.P., DLJ Merchant Banking Funding, Inc., DLJ
First ESC LCC and Chase Equity Associates each shall have furnished to you their
written opinion (drafts of such opinions are attached as Annex II(c) hereto)
with respect to each of the Selling Stockholders for whom they are acting as
counsel, dated such Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) A Power of Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Stockholder and constitute valid
and binding agreements of such Selling Stockholder in accordance with
their terms;
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(ii) This Agreement and the International Underwriting
Agreement have been duly executed and delivered by or on behalf of such
Selling Stockholder; and the sale of the Shares or Warrants to be sold
by such Selling Stockholder hereunder and thereunder and the compliance
by such Selling Stockholder with all of the provisions of this
Agreement and the International Underwriting Agreement, the Power of
Attorney and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any terms or provisions of, or
constitute a default under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which such Selling Stockholder is a party or by which such
Selling Stockholder is bound, or to which any of the property or assets
of such Selling Stockholder is subject, nor will such action result in
any violation of the provisions of the Certificate of Incorporation or
By-laws of such Selling Stockholder if such Selling Stockholder is a
corporation, the Partnership Agreement of such Selling Stockholder if
such Selling Stockholder is a partnership, any other constituent
documents of such Selling Stockholder or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over such Selling Stockholder or the property of
such Selling Stockholder;
(iii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement and the
International Underwriting Agreement in connection with the Shares or
Warrants to be sold by such Selling Stockholder hereunder or
thereunder, except such as have been obtained under the Act,
registration of the Stock under the Exchange Act and listing of the
Shares on the Exchange;
(iv) Immediately prior to such Time of Delivery such Selling
Stockholder had good and valid title to the Shares to be sold at such
Time of Delivery by such Selling Stockholder under this Agreement and
the International Underwriting Agreement, free and clear of all liens,
encumbrances, equities or claims, and full right, power and authority
to sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder and thereunder;
(v) Immediately prior to such Time of Delivery such Selling
Stockholder had good and valid title to the Warrants to be sold at such
Time of Delivery by such Selling Stockholder under this Agreement and
the International Underwriting Agreement, free and clear of all liens,
encumbrances, equities and claims, and full right, power and authority
to sell, assign, transfer and deliver the Warrants to be sold by such
Selling Stockholder hereunder and thereunder; and
(vi) Good and valid title to the Shares referred to in (iv)
above and the Warrants referred to in (v) above, free and clear of all
liens, encumbrances, equities or claims, has been transferred to each
of the several Underwriters or International Underwriters, as the case
may be.
In rendering the opinion in subparagraphs (iv), (v) and (vi) such
counsel may rely upon a certificate of such Selling Stockholder in respect of
matters of fact as to ownership of, and liens, encumbrances, equities or claims
on the Shares or Warrants sold by such Selling Stockholder, provided that such
counsel shall state that they believe that both you and they are justified in
relying upon such certificate;
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and prior to the last Time of
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Delivery, and also at each Time of Delivery, Ernst & Young LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set forth in
Annex I hereto (the executed copy of the letter delivered prior to the execution
of this Agreement is attached as Annex I(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective amendment to
the Registration Statement and as of each Time of Delivery is attached as Annex
I(b) hereto);
(g)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been any
change in the capital stock (other than changes resulting from the exercise of
options outstanding as of the date of this Agreement) or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in Clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(h) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's or Essex's debt securities or Essex's bank
debt by any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Company's or Essex's debt securities or Essex's bank debt;
(i) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the Exchange; (ii) a suspension or material limitation in trading
in the Company's securities on the Exchange or in trading in Essex's securities
on the Pacific Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this Clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
(j) The Shares to be sold by the Company and the Selling Stockholders
at such Time of Delivery shall have been duly listed, subject to notice of
issuance, on the Exchange;
(k) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from Bessemer Holdings, L.P., Bessemer Holdings
Special Situations, L.P., BGE Partners, L.P., BNE Partners, L.P., BTE Partners,
L.P., BCE Partners, L.P., Bessec Holdings, L.P., Steven R. Abbott, Robert J.
Faucher, Dominic A. Lucenta, Charles W. McGregor, Debra F. Minott, Curtis A.
Norton, David A. Owen and Gregory R. Schriefer to the effect set forth in
Subsection 1(b)(iv) hereof in form and substance satisfactory to you;
(l) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company and of the Selling
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Stockholders, respectively, satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Selling Stockholders,
respectively, herein at and as of such Time of Delivery, as to the performance
by the Company and the Selling Stockholders of all of their respective
obligations hereunder to be performed at or prior to such Time of Delivery, and
as to such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (g) of this Section, and as to such other matters
as you may reasonably request;
(m) The Company shall have complied with the provisions of
Section 6(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement;
(n) The Company shall have complied with the provisions of
Section 6(l) with respect to the redemption of the Warrants to be sold at such
Time of Delivery for shares of Stock; and
(o) The Stock Split, the Reclassification and the amendment and
restatement of the Essex Revolving Credit Agreement as the Restated Credit
Agreement, each as described in the Prospectus, shall have been consummated as
described in the Prospectus; and the Termination, Amendment and Approval
Agreement, dated as of April 1, 1997, shall have been duly authorized, executed
and delivered by the parties thereto and shall have become effective.
9. (a) The Company and Essex, jointly and severally, will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon 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, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company and Essex shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Goldman, Sachs &
Co. expressly for use therein.
(b) Each of the Selling Stockholders, severally and not jointly, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon 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, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use therein;
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however,
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that such Selling Stockholder shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through Goldman,
Sachs & Co. expressly for use therein.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon 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, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Goldman, Sachs & Co.
expressly for use therein; and will reimburse the Company and each Selling
Stockholder for any legal or other expenses reasonably incurred by the Company
or such Selling Stockholder in connection with investigating or defending any
such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b), or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party and, if the Company or Essex is an indemnifying party, counsel to the
Company or Essex), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate
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to reflect the relative benefits received by the Company, Essex and the Selling
Stockholders on the one hand and the Underwriters on the other from the offering
of the Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (d) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropri ate to reflect not only such relative benefits
but also the relative fault of the Company, Essex and the Selling Stockholders
on the one hand and the Underwriters on the other in connection with the state
ments or omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, Essex and the
Selling Stockholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Shares purchased under this Agreement (before deducting expenses)
received by the Company, Essex and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Shares purchased under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, Essex or the
Selling Stockholders on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, Essex, each of the
Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in con nection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) The obligations of the Company, Essex and the Selling Stock-
holders under this Section 9 shall be in addition to any liability which the
Company, Essex and the respective Selling Stockholders may otherwise have,
including, without limitation, under the Registration Rights Agreement and the
Management Stockholders Agreement, and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 9
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his or her
consent, is named in the Registration Statement as about to become a director of
the Company) and to each person, if any, who controls the Company or any Selling
Stockholder within the meaning of the Act.
(g) Notwithstanding the other provisions of this Section 9, the
liability or required contribution of any Selling Stockholder pursuant to this
Section 9 shall not exceed the sum of (i) the product of the number of Shares
(excluding any shares of Stock underlying the Warrants) sold by such Selling
Stockholder, including any Optional Shares, and the initial public offering
price of the Shares
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as set forth in the Prospectus and (ii) the product of the number of Warrants
sold by such Selling Stockholder, including any Optional Warrants, to the
Underwriters and the purchase price per Warrant set forth in Section 2(b).
10. (a) The Company and Essex, jointly and severally, will indemnify
and hold harmless Smith Barney Inc., in its capacity as QIU, against any losses,
claims, damages or liabilities, joint or several, to which the QIU may become
subject, under the Act of otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon 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, and will
reimburse the QIU for any legal or other expenses reasonably incurred by the QIU
in connection with investigating or defending any such action or claim as such
expenses are incurred.
(b) Promptly after receipt by the QIU under subsection (a) above of
notice of the commencement of any action, the QIU shall, if a claim in respect
thereof is to be made against the Company and Essex under such subsection,
notify the Company and Essex in writing of the commencement thereof; but the
omission so to notify the Company and Essex shall not relieve them from any
liability which they may have to the QIU otherwise than under such subsection.
In case any such action shall be brought against the QIU and it shall notify the
Company and Essex of the commencement thereof, the Company and Essex shall be
entitled to participate therein and, to the extent that they shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to the QIU (who shall not, except with the
consent of the QIU, be counsel to the Company or Essex), and, after notice from
the indemnifying party to the QIU of its election so to assume the defense
thereof, the indemnifying party shall not be liable to the QIU under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by the QIU, in connection with the defense
thereof other than reasonable costs of investigation. Neither of the Company or
Essex shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the QIU
is an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the QIU from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of the QIU.
(c) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless Smith Barney Inc., in its
capacity as QIU, under subsection (a) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
the Company and Essex shall contribute to the amount paid or payable by the QIU
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Essex on the one hand and the QIU on the
other from the offering of the Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
QIU failed to give the notice required under subsection (b) above, then the
Company and Essex shall contribute to such amount paid or payable by the QIU in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and Essex on the one hand and the QIU on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and Essex on the one hand and the QIU on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting
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expenses) received by the Company, as set forth in the table on the cover page
of the Prospectus, bear to any fee paid to the QIU. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and Essex on the
one hand or the QIU on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, Essex and the QIU agree that it would not be just and
equitable if contributions pursuant to this subsection (c) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(c). The amount paid or payable by the QIU as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (c) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigation or defending
any such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(d) The obligations of the Company and Essex under this Section 10
shall be in addition to any liability which the Company or Essex may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls the QIU within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company and the Selling Stockholders shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company and
the Selling Stockholders that you have so arranged for the purchase of such
Shares, or the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Stockholders shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all of the Shares to be purchased at such Time of
Delivery, then the Company and the Selling Stockholders shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-
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eleventh of the aggregate number of all of the Shares to be purchased at such
Time of Delivery, or if the Company and the Selling Stockholders shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company and the Selling
Stockholders to sell the Optional Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company or the
Selling Stockholders, except for the expenses to be borne by the Company and the
Selling Stockholders and the Underwriters as provided in Section 7 hereof and
the indemnity and contribution agreements in Section 9 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(d) For the purposes of clarity, all references in this Section 11
to the Shares shall be deemed to refer to and include the shares of Stock
underlying any Warrants to be purchased.
12. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, or any of the Selling Stockholders, or any
officer or director or controlling person of the Company, or any controlling
person of any Selling Stockholder, and shall survive delivery of and payment for
the Shares.
13. If this Agreement shall be terminated pursuant to Section 11
hereof, neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason any Shares or Warrants are not delivered by or on behalf
of the Company and the Selling Stockholders as provided herein, the Company will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares and Warrants not so delivered, but the Company and the
Selling Stockholders shall then be under no further liability to any Underwriter
in respect of the Shares and Warrants not so delivered except as provided in
Sections 7 and 9 hereof.
14. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives; and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Goldman, Sachs &
Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department; if to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Stockholder at its
address set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 9(d) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be
-24-
<PAGE>
supplied to the Company or the Selling Stockholders by you upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
15. This Agreement shall be binding upon, and inure solely to the
benefit of, the Under writers, the Company, Essex and the Selling Stockholders
and, to the extent provided in Sections 9 and 12 hereof, the officers and
directors of the Company and each person who controls the Company, any Selling
Stockholder or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us 7 counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and each of the Selling Stockholders. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters (U.S. Version), the form of
which shall be submitted to the Company and the Selling Stockholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
-25-
<PAGE>
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
Essex International Inc.
By: /s/ Debra F. Minott
Name: Debra F. Minott
Title: Senior Vice President,
General Counsel and Secretary
Essex Group, Inc.
By: /s/ Debra F. Minott
Name: Debra F. Minott
Title: Senior Vice President,
General Counsel and Secretary
GS Capital Partners, L.P.
Stone Street Fund 1992, L.P.
Bridge Street Fund 1992, L.P.
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: Attorney-in-Fact
DLJ International Partners, C.V.
DLJ Merchant Banking Partners, L.P.
DLJ Merchant Banking Funding, Inc.
DLJ First ESC LLC
By: /s/ Claire M. Power
Name: Claire M. Power
Title: Assistant Secretary
-26-
<PAGE>
Chase Equity Associates
By: /s/ Brian J. Richmand
Name: Brian J. Richmand
Title: Attorney-in-Fact
John L. Cox
Stanley C. Craft
David O. McMahan
Frederick M. Zinser
By: /s/ Debra F. Minott
Name: Debra F. Minott
Attorney-in-Fact
Accepted as of the date hereof:
Goldman, Sachs & Co.
Smith Barney Inc.
Donaldson, Lufkin & Jenrette
Securities Corporation
Lehman Brothers Inc.
By: /s/ Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
-27-
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Number of Number of
Optional Optional
Shares to be Warrants to
Total Number Total Number Purchased if be Purchased
of Firm of Firm Maximum if Maximum
Shares to be Warrants to Option Option
Underwriter Purchased be Purchased Exercised Exercised
<S> <C> <C> <C> <C>
Goldman, Sachs & Co.......................... 857,643 440,797 138,387 51,446
Smith Barney Inc............................. 857,643 440,797 138,387 51,446
Donaldson, Lufkin & Jenrette
Securities Corporation...................... 514,473 264,421 83,014 30,861
Lehman Brothers Inc.......................... 514,473 264,421 83,014 30,861
Chase Securities Inc......................... 54,803 28,167 8,843 3,287
Cleary Gull Relland & McDevitt Inc........... 30,197 15,520 4,873 1,811
A.G. Edwards & Sons, Inc..................... 54,803 28,167 8,843 3,287
EVEREN Securities, Inc....................... 54,803 28,167 8,843 3,287
Furman Selz LLC.............................. 30,197 15,520 4,873 1,811
Interstate/Johnson Lane Corporation.......... 30,197 15,520 4,873 1,811
Edward D. Jones & Co., L.P................... 30,197 15,520 4,873 1,811
McDonald & Company Securities, Inc........... 30,197 15,520 4,873 1,811
Merrill Lynch, Pierce, Fenner
& Smith Incorporated....................... 54,803 28,167 8,843 3,287
NatCity Investments, Inc..................... 30,197 15,520 4,873 1,811
Oppenheimer & Co., Inc....................... 54,803 28,167 8,843 3,287
Principal Financial Securities, Inc.......... 30,197 15,520 4,873 1,811
Prudential Securities Incorporated........... 54,803 28,167 8,843 3,287
Rauscher Pierce Refsnes, Inc................. 30,197 15,520 4,873 1,811
Roney & Co., L.L.C........................... 30,197 15,520 4,873 1,811
Schroder Wertheim & Co. Incorporated......... 54,803 28,167 8,843 3,287
Stifel, Nicolaus & Company, Incorporated..... 30,197 15,520 4,873 1,811
--------- ---------- ---------- ---------
Total............................... 3,429,823 1,762,805 553,427 205,740
========= ========== ========== =========
</TABLE>
-28-
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Number of Number of
Optional Optional
Shares to be Warrants to
Total Number Sold if be Sold if
Total Number of Firm Maximum Maximum
of Firm Shares Warrants Option Option
to be sold to be Sold Exercised Exercised
<S> <C> <C> <C> <C>
The Company................................ 2,400,000 0 0 0
The Selling Stockholders:
GS Capital Partners, L.P.(a)............. 46,190 874,031 317,965 0
Stone Street Fund 1992, L.P.(a).......... 622 13,984 4,284 0
Bridge Street Fund 1992, L.P.(a)......... 375 8,426 2,581 0
DLJ International Partners, C.V.(b)...... 521,566 0 123,859 0
DLJ Merchant Banking Partners, L.P.(c)... 0 476,696 0 113,204
DLJ Merchant Banking Funding, Inc.(c).... 0 231,595 0 54,998
DLJ First ESC LLC(c)..................... 0 158,073 0 37,538
Chase Equity Associates(d).............. 302,074 0 104,737 0
John L. Cox(e)........................... 20,000 0 0 0
Stanley C. Craft(e)...................... 60,000 0 0 0
David O. McMahan(e)...................... 14,996 0 0 0
Frederick M. Zinser(e)................... 64,000 0 0 0
----------- ----------- ---------- ----------
Total............................. 3,429,823 1,762,805 553,426 205,740
=========== =========== ========== ==========
<FN>
(a) This Selling Stockholder is represented by David J. Greenwald, 85 Broad
Street, New York, NY 10004 and has appointed Richard A. Friedman and Joseph H.
Gleberman, and each of them, as the Attorneys-in-Fact for such Selling
Stockholder.
(b) This Selling Stockholder is represented by Michael A. Boyd, 277
Park Avenue, New York, NY and DeBrauw Blackstone Westbroik, 712 Fifth Avenue,
New York, NY 10019 and has appointed Ivy B. Dodes and Nichole Arnaboldi, and
each of them, as the Attorneys-in-Fact for such Selling Stockholder.
(c) This Selling Stockholder is represented by Michael A. Boyd, 277 Park
Avenue, New York, NY 10172 and has appointed Ivy Dodes and Nichole Arnaboldi,
and each of them, as the Attorneys-in-Fact for such Selling Stockholder.
(d) This Selling Stockholder is represented by White & Case, 1155 Avenue
of the Americas, New York, NY 10036 and has appointed Brian J. Richmand and John
M.B. O'Connor, and each of them, as Attorneys-in- Fact for such Selling
Stockholder.
(e) This Selling Stockholder has appointed Steven R. Abbott, David A.
Owen and Debra F. Minott, and each of them, as the Attorneys-in-Fact for such
Selling Stockholder.
</FN>
</TABLE>
-29-
EXHIBIT 4
Essex International Inc.
Common Stock
(par value of $.01 per share)
Underwriting Agreement
(International Version)
April 17, 1997
Goldman Sachs International,
Smith Barney Inc.,
Donaldson, Lufkin & Jenrette
Securities Corporation,
Lehman Brothers International (Europe),
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman Sachs International,
Peterborough Court,
133 Fleet Street,
London EC4A 2BB, England.
Ladies and Gentlemen:
Essex International Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 600,000 shares of Common Stock, par value $.01 per share ("Stock"), of the
Company and the stockholders of the Company named in Schedule II hereto (the
"Selling Stockholders") propose, subject to the terms and conditions stated
herein, to sell to the Underwriters (a) an aggregate of 257,456 shares of Stock
and (b) an aggregate of 440,701 warrants to purchase shares of Stock and, at the
election of the Underwriters, up to (a) 138,357 additional shares of Stock and
(b) 51,435 additional warrants to purchase shares of Stock. The aggregate of
857,456 shares to be sold by the Company and the Selling Stockholders is herein
called the "Firm Shares", the aggregate of 440,701 warrants to be sold by
certain Selling Stockholders is herein called the "Firm Warrants", the aggregate
of 138,357 additional shares to be sold by certain Selling Stockholders is
herein called the "Optional Shares" and the aggregate of 51,435 additional
warrants to be sold by certain Selling Stockholders is herein called the
"Optional Warrants". The Firm Warrants and the Optional Warrants that the
Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the Warrants, and the Firm Shares, the Optional Shares that
the Underwriters elect to purchase pursuant to Section 2 hereof and the shares
of Stock to be issued upon redemption of the Warrants by the Company as
hereinafter provided are herein collectively called the "Shares".
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement, a copy of
which is attached hereto (the "U.S. Underwriting Agreement"), providing for (a)
the sale by the Company and certain Selling Stockholders of up to a total of
3,983,250 shares of Stock and (b) the sale by certain Selling Stockholders of up
to a total of 1,968,545 warrants (the shares of Stock referred to in (a),
together with the Shares of Stock to be issued upon redemption of the warrants
by the Company, are herein collectively referred to as the "U.S. Shares"),
including the overallotment option thereunder, through arrangements with certain
underwriters in the United States (the "U.S. Underwriters"), for whom Goldman,
Sachs & Co., Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities
Corporation and Lehman Brothers Inc. are acting
- 1 -
<PAGE>
as representatives. Anything herein or therein to the contrary notwithstanding,
the respective closings under this Agreement and the U.S. Underwriting Agreement
are hereby expressly made conditional on one another. The Underwriters hereunder
and the U.S. Underwriters are simultaneously entering into an Agreement between
U.S. and International Underwriting Syndicates (the "Agreement between
Syndicates") which provides, among other things, for the transfer of shares of
Stock between the two syndicates and for consultation by Goldman Sachs
International, Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities
Corporation and Lehman Brothers International (Europe), the Lead Managers
hereunder, with Goldman, Sachs & Co. prior to exercising the rights of the
Underwriters under Sec tion 7 hereof. Two forms of prospectus are to be used in
connection with the offering and sale of shares of Stock contemplated by the
foregoing, one relating to the Shares hereunder and the other relating to the
U.S. Shares. The latter form of prospectus will be identical to the former
except for certain substitute pages. Except as used in Sections 2, 3, 4, 9 and
11 herein, and except as context may otherwise require, references hereinafter
to the Shares shall include all of the shares of Stock which may be sold
pursuant to either this Agreement or the U.S. Underwriting Agreement, including
any shares of Stock to be issued by the Company upon the redemption of the
Warrants, references hereinafter to the Warrants shall include all the warrants
which may be sold pursuant to either this Agreement or the U.S. Underwriting
Agreement and references herein to any prospectus, whether in preliminary or
final form, and whether as amended or supplemented, shall include both the U.S.
and the international versions thereof.
In addition, this Agreement incorporates by reference certain
provisions from the U.S. Underwriting Agreement (including the related
definitions of terms, which are also used elsewhere herein) and, for purposes of
applying the same, references (whether in these precise words or their
equivalent) in the incorporated provisions to the "Underwriters" shall be to the
Underwriters hereunder, to the "Shares" shall be to the Shares hereunder as just
defined, to the "Warrants" shall be to the Warrants hereunder as just defined,
to "this Agreement" (meaning therein the U.S. Underwriting Agreement) shall be
to this Agreement (except where this Agreement is already referred to or as the
context may otherwise require) and to the representatives of the Underwriters or
to Goldman, Sachs & Co. shall be to the addressees of this Agreement and to
Goldman Sachs International ("GSI"), and, in general, all such provisions and
defined terms shall be applied mutatis mutandis as if the incorporated
provisions were set forth in full herein having regard to their context in this
Agreement as opposed to the U.S. Underwriting Agreement.
1. The Company and each of the several Selling Stockholders hereby make
to the Underwriters the same respective representations, warranties and
agreements as are set forth in Section 1 of the U.S. Underwriting Agreement,
which Section is incorporated herein by this reference.
2. Subject to the terms and conditions herein set forth, (a) the
Company and each of the Selling Stockholders agree, severally and not jointly,
to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company and each of the Selling
Stockholders, at a purchase price per share of $15.98, the number of Firm Shares
(to be adjusted by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to be sold by the Company and
each of the Selling Stockholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the aggregate number
of Firm Shares to be purchased by such Underwriter as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the aggregate number of Firm Shares to be purchased by all the Underwriters from
the Company and all the Selling Stockholders hereunder, (b) certain Selling
Stockholders agree, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from such Selling Stockholders, at a purchase price of $10.6077684 per
Warrant, the number of Firm Warrants (to be adjusted by you so as to eliminate
the redemption of a Warrant for a fractional share) determined by multiplying
the
- 2 -
<PAGE>
aggregate number of Firm Warrants to be sold by such Selling Stockholders as set
forth opposite their respective names in Schedule II hereto by a fraction, the
numerator of which is the aggregate number of Firm Warrants to be purchased by
such Underwriter as set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the aggregate number of all Firm
Warrants to be purchased by all the Underwriters from such Selling Stockholders
and (c) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares and Optional Warrants as provided below,
each of the Selling Stockholders agrees, severally and not jointly, to sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from each of the Selling Stockholders, at the purchase
price per share set forth in clause (a) of this Section 2 or at the purchase
price per Warrant set forth in clause (b) of this Section 2, that portion of the
number of Optional Shares and Optional Warrants as to which such election shall
have been exercised (to be adjusted by you so as to eliminate fractional shares
and the redemption of a Warrant for a fractional share) determined (i) in the
case of Optional Shares, by multiplying such number of Optional Shares by a
fraction the numerator of which is the maximum number of Optional Shares which
such Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder and (ii) in the case of Optional Warrants, by multiplying such number
of Optional Warrants by a fraction the numerator of which is the maximum number
of Optional Warrants which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Warrants that all of the Underwriters
are entitled to purchase hereunder.
Each of the Selling Stockholders, as and to the extent indicated in
Schedule II hereto, hereby grant, severally and not jointly, to the Underwriters
the right to purchase at their election up to 138,357 Optional Shares and up to
51,435 Optional Warrants, at the purchase price per share or per Warrant set
forth in the paragraph above, for the sole purpose of covering overallotments in
the sale of the Firm Shares (including for this purpose all of the shares of
Stock to be received upon redemption of the Firm Warrants). Any such election to
purchase Optional Shares shall be made in proportion to the maximum number of
Optional Shares to be sold by each Selling Stockholder as set forth in Schedule
II hereto, it being understood that for the purpose of this calculation the
Optional Warrants shall be treated as if they had been redeemed for shares of
Stock and that the Optional Shares and the Optional Warrants shall be purchased
in the same proportion as the total number of Optional Shares bears to the total
number of shares of Stock to be received upon redemption of all the Optional
Warrants. Any such election to purchase Optional Shares and Optional Warrants
may be exercised only by written notice from you to the Attorneys-in-Fact, given
within a period of 30 calendar days after the date of this Agreement and setting
forth the aggregate number of Optional Shares and Optional Warrants to be
purchased and the date on which such Optional Shares and Optional Warrants are
to be delivered, as determined by you but in no event earlier than the First
Time of Delivery (as defined in Section 4 hereof) or, unless you and the
Attorneys-in-Fact otherwise agree in writing, earlier than one or later than ten
business days after the date of such notice.
3. Upon the authorization by GSI of the release of the Firm Shares
(including for this purpose all the shares of Stock to be received upon
redemption of the Firm Warrants), the several Underwriters propose to offer the
Firm Shares (including for this purpose all the shares of Stock to be received
upon redemption of the Firm Warrants) for sale upon the terms and conditions set
forth in the Prospectus and in the forms of Agreement among Underwriters
(International Version) and Selling Agreements, which have been previously
submitted to the Company by you. Each Underwriter hereby makes to and with the
Company and the Selling Stockholders the representations and agreements of such
Underwriter as a member of the selling group contained in Sections 3(d) and 3(e)
of the form of Selling Agreements.
- 3 -
<PAGE>
4. (a) The Shares and Warrants to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as Goldman, Sachs & Co. may request upon at least
forty-eight hours' prior notice to the Company and the Selling Stockholders
shall be delivered by or on behalf of the Company and the Selling Stockholders
to Goldman, Sachs & Co., for the account of such Underwriter, against payment by
or on behalf of such Underwriter of the purchase price therefor by certified or
official bank check or checks or by wire transfer, payable to the order of the
Company and the Custodian in Federal Funds (same day). The delivery of the
Shares to Goldman, Sachs & Co. pursuant to the prior sentence may be made, at
the option of Goldman, Sachs & Co., through the facilities of The Depository
Trust Company ("DTC"). The Company will cause the certificates representing the
Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004,
or at the office of DTC or its designated custodian, as the case may be (the
"Designated Office"). The time and date of such delivery and payment shall be,
with respect to the Firm Shares and the Firm Warrants, 9:30 a.m., New York City
time, on April 23, 1997 or such other time and date as Goldman, Sachs & Co. and
the Company may agree upon in writing, and, with respect to the Optional Shares
and the Optional Warrants, 9:30 a.m., New York time, on the date specified by
Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the
Underwriters' election to purchase such Optional Shares and the Optional
Warrants, or such other time and date as Goldman, Sachs & Co. and the
Attorneys-in-Fact may agree upon in writing. Such time and date for delivery of
the Firm Shares and the Firm Warrants is herein called the "First Time of
Delivery", such time and date for delivery of the Optional Shares and the
Optional Warrants, if not the First Time of Delivery, is herein called the
"Second Time of Delivery", and each such time and date for delivery is herein
called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 of the U.S. Underwriting
Agreement, including the cross-receipt for the Shares and the Warrants and any
additional documents requested by the Underwriters pursuant to Section 8(l) of
the U.S. Underwriting Agreement will be delivered at the offices of Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004 (the "Closing Location"),
and the Shares will be delivered at the Designated Office, all at each Time of
Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New York
City time, on the New York Business Day next preceding each Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company hereby makes with the Underwriters the same agreements
as are set forth in Section 6 of the U.S. Underwriting Agreement, which Section
is incorporated herein by this reference.
6. The Company, each of the Selling Stockholders, and the Underwriters
hereby agree with respect to certain expenses on the same terms as are set forth
in Section 7 of the U.S. Underwriting Agreement, which Section is incorporated
herein by this reference.
7. Subject to the provisions of the Agreement between Syndicates, the
obligations of the Underwriters hereunder shall be subject, in their discretion,
at each Time of Delivery to the condition that all representations and
warranties and other statements of the Company, and the Selling Stock holders
herein are, at and as of such Time of Delivery, true and correct, the condition
that the Company and the Selling Stockholders shall have performed all of their
respective obligations hereunder
- 4 -
<PAGE>
theretofore to be performed, and additional conditions identical to those set
forth in Section 8 of the U.S. Underwriting Agreement, which Section is
incorporated herein by this reference.
8. (a) The Company and Essex Group, Inc. ("Essex"), jointly and
severally, will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon 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,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company and Essex shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through GSI expressly
for use therein.
(b) Each of the Selling Stockholders, severally and not jointly, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon 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, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use therein;
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that such
Selling Stockholder shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through GSI expressly
for use therein.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon 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, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by
- 5 -
<PAGE>
such Underwriter through GSI expressly for use therein; and will reimburse the
Company and each Selling Stockholder for any legal or other expenses reasonably
incurred by the Company or such Selling Stockholder in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party and, if the Company or Essex is an indemnifying party, counsel to the
Company or Essex), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a),(b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company, Essex and the Selling Stockholders on
the one hand and the Underwriters on the other from the offering of the Shares.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropri ate to reflect not only such relative benefits but
also the relative fault of the Company, Essex and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the state
ments or omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, Essex and the
Selling Stockholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Shares purchased under this Agreement (before deducting expenses)
received by the Company, Essex and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Shares purchased under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, Essex or the
Selling Stockholders on the one hand or the Underwriters on the other and the
parties' relative
- 6 -
<PAGE>
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, Essex, each of the Selling Stockholders
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in con nection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) The obligations of the Company, Essex and the Selling Stockholders
under this Section 8 shall be in addition to any liability which the Company,
Essex and the respective Selling Stockholders may otherwise have, including,
without limitation, under the Registration Rights Agreement and the Management
Stockholders Agreement, and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the meaning of the Act;
and the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company (including any person who, with his or her consent, is
named in the Registration Statement as about to become a director of the
Company) and to each person, if any, who controls the Company or any Selling
Stockholder within the meaning of the Act.
(g) Notwithstanding the other provisions of this Section 8, the
liability or required contribution of any Selling Stockholder pursuant to this
Section 8 shall not exceed the sum of (i) the product of the number of Shares
(excluding any shares of Stock underlying the Warrants) sold by such Selling
Stockholder, including any Optional Shares, and the initial public offering
price of the Shares as set forth in the Prospectus and (ii) the product of the
number of Warrants sold by such Selling Stockholder, including any Optional
Warrants, to the Underwriters and the purchase price per Warrant set forth in
Section 2(b).
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company and the Selling Stockholders shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company and
the Selling Stockholders that you have so arranged for the purchase of such
Shares, or the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Stockholders shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term
- 7 -
<PAGE>
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of Delivery,
then the Company and the Selling Stockholders shall have the right to require
each non-defaulting Underwriter to purchase the number of shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all the Shares to be purchased at such Time of Delivery, or
if the Company and the Selling Stockholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Company and the Selling Stockholders to sell
the Optional Shares) shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company or the Selling Stockholders,
except for the expenses to be borne by the Company and the Selling Stockholders
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(d) For the purposes of clarity, all references in this Section 9 to
the Shares shall be deemed to refer to and include the shares of Stock
underlying any Warrants to be purchased.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company or any of the Selling Stockholders, or any officer
or director or controlling person of the Company or any controlling person of
any Selling Stockholders, and shall survive delivery of and payment for the
Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Section 6 and Section 8
hereof; but, if for any other reason, any Shares or Warrants are not delivered
by or on behalf of the Company and the Selling Stockholders as provided herein,
the Company will reimburse the Underwriters through GSI for all out-of-pocket
expenses approved in writing by GSI, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Shares and Warrants not so delivered, but the
Company and the Selling Stockholders shall then be under no further liability to
any Underwriter in respect of the Shares and Warrants not so delivered except as
provided in Sections 6 and 8 hereof.
- 8 -
<PAGE>
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by GSI on behalf of you as the representatives of the
Underwriters; and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the Underwriters in care of GSI, Peterborough Court,
133 Fleet Street, London EC4A 2BB, England, Attention: Equity Capital Markets,
Telex No. 94012165, facsimile transmission No. (071) 774-1550; if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission
to counsel for such Selling Stockholder at its address set forth in Schedule II
hereto; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling
Stockholders by GSI upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, Essex and the Selling Stockholders
and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and each person who controls the Company, any Selling
Stockholder or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, United States of America.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us 7 counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and each of the Selling Stockholders. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters (International Version), the
form of which shall be furnished to the Company and the Selling Stockholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
- 9 -
<PAGE>
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
Essex International Inc.
By: /s/ Debra F. Minott
Name: Debra F. Minott
Title: Senior Vice President,
General Counsel and Secretary
Essex Group, Inc.
By: /s/ Debra F. Minott
Name: Debra F. Minott
Title: Senior Vice President,
General Counsel and Secretary
GS Capital Partners, L.P.
Stone Street Fund 1992, L.P.
Bridge Street Fund 1992, L.P.
By: /s/ Richard A. Friedman
Name: Richard A. Friedman
Title: Attorney-in-Fact
DLJ International Partners, C.V.
DLJ Merchant Banking Partners, L.P.
DLJ Merchant Banking Funding, Inc.
DLJ First ESC LLC
By: /s/ Claire M. Power
Name: Claire M. Power
Title: Assistant Secretary
- 10 -
<PAGE>
Chase Equity Associates
By: /s/ Brian J. Richmand
Name: Brian J. Richmand
Title: Attorney-in-Fact
John L. Cox
Stanley C. Craft
David O. McMahan
Frederick M. Zinser
By: /s/ Debra F. Minott
Name: Debra F. Minott
Attorney-in-Fact
Accepted as of the date hereof:
Goldman Sachs International
Smith Barney Inc.
Donaldson, Lufkin & Jenrette
Securities Corporation
Lehman Brothers International (Europe)
By: Goldman Sachs International
By: /s/ Steven C. Fletcher
(Attorney-in-Fact)
On behalf of each of the Underwriters
- 11 -
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Number of
Number of Optional
Total Number Optional Shares Warrants to be
Total Number of of Firm to be Purchased Purchased if
Firm Shares to Warrants to be if Maximum Maximum Option
Underwriter be Purchased Purchased Option Exercised Exercised
<S> <C> <C> <C> <C>
Goldman Sachs International....... 274,386 141,025 44,275 16,460
Smith Barney Inc.................. 274,386 141,024 44,274 16,459
Donaldson, Lufkin & Jenrette
Securities Corporation........... 154,342 79,326 24,904 9,258
Lehman Brothers International
(Europe).......................... 154,342 79,326 24,904 9,258
----------- ----------- ----------- -----------
Total........... 857,456 440,701 138,357 51,435
=========== =========== =========== ===========
</TABLE>
- 12 -
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Number of Number of
Optional Shares to Optional
Total Number Total Number of be Sold if Warrants to be
of Firm Shares Firm Warrants Maximum Option Sold if Maximum
to be sold to be Sold Exercised Option Exercised
<S> <C> <C> <C> <C>
The Company.............................. 600,000 0 0 0
The Selling Stockholders:
GS Capital Partners, L.P.(a)........... 11,547 218,507 79,492 0
Stone Street Fund 1992, L.P.(a)........ 156 3,496 1,071 0
Bridge Street Fund 1992, L.P.(a)....... 94 2,107 645 0
DLJ International Partners, C.V.(b).... 130,391 0 30,965 0
DLJ Merchant Banking Partners,
L.P.(c).......................... 0 119,174 0 28,301
DLJ Merchant Banking Funding,
Inc.(c)......................... 0 57,899 0 13,749
DLJ First ESC LLC(c)................... 0 39,518 0 9,385
Chase Equity Associates(d)............ 75,519 0 26,184 0
John L. Cox(e)......................... 5,000 0 0 0
Stanley C. Craft(e).................... 15,000 0 0 0
David O. McMahan(e).................... 3,749 0 0 0
Frederick M. Zinser(e)................. 16,000 0 0 0
------- ------- ------- -------
Total........................... 857,456 440,701 138,357 51,435
======= ======= ======= =======
<FN>
(a) This Selling Stockholder is represented by David J. Greenwald, 85
Broad Street, New York, NY 10004 and has appointed Richard A. Friedman and
Joseph H. Gleberman, and each of them, as the Attorneys-in-Fact for such Selling
Stockholder.
(b) This Selling Stockholder is represented by Michael A. Boyd, 277
Park Avenue, New York, NY 10172 and De Brauw Blackstone Westbroek, 712 Fifth
Avenue, New York, NY 10019 and has appointed Ivy B. Dodes and Nichole Arnaboldi,
and each of them, as the Attorneys-in-Fact for such Selling Stockholder.
(c) This Selling Stockholder is represented by Michael A. Boyd, 277
Park Avenue, New York, NY 10172 and has appointed Ivy Dodes and Nichole
Arnaboldi, and each of them, as the Attorneys-in-Fact for such Selling
Stockholder.
(d) This Selling Stockholder is represented by White & Case, 1155
Avenue of the Americas, New York, NY 10036 and has appointed Brian J. Richmand
and John M.B. O'Connor, and each of them, as the Attorneys-in-Fact for such
Selling Stockholder.
(e) This Selling Stockholder has appointed Steven R. Abbott, David A.
Owen and Debra F. Minott, and each of them, as the Attorneys-in-Fact for such
Selling Stockholder.
- 13 -
</FN>
</TABLE>
EXHIBIT 5
ESSEX INTERNATIONAL INC.
Common Stock
Lock-Up Agreement
April , 1997
Essex International Inc.,
1601 Wall Street,
Fort Wayne, Indiana 46802.
Goldman, Sachs & Co. Goldman Sachs International
Smith Barney Inc. Smith Barney Inc.
Donaldson, Lufkin & Jenrette Donaldson, Lufkin & Jenrette Securities
Securities Corporation Corporation
Lehman Brothers Inc., Lehman Brothers International (Europe),
As proposed representatives of the As proposed representatives of the
several U.S. Underwriters, several International Underwriters,
c/o Goldman, Sachs & Co., c/o Goldman Sachs International,
85 Broad Street, Peterborough Court,
New York, New York 10004. 133 Fleet Street,
London EC4A 2BB, England
Ladies and Gentlemen:
The undersigned hereby irrevocably confirms, covenants and agrees that
during the period beginning from the date hereof and continuing to and including
the date 180 days after the date of the final prospectuses used in connection
with the proposed offering of common stock, par value $.01 per share (the
"Common Stock"), by Essex International Inc. (the "Company") and certain selling
shareholders (the "Offering") the undersigned will not, directly or indirectly,
offer, sell, contract to sell or otherwise dispose of, including, without
limitation, through the entry into a physically or cash-settled derivative
instrument, any shares of Common Stock or any securities of the Company that are
substantially similar to the Common Stock, including but not limited to any
securities that are convertible into or exchangeable for, or that represent the
right to receive, Common Stock or any such substantially similar securities
(other than upon the conversion or exchange of convertible or exchangeable
securities outstanding as of the date of this Agreement), without the prior
written consent of Goldman, Sachs & Co. In the event that the Offerings are not
consummated prior to October 1, 1997, this Agreement shall be null and void.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York.
Very truly yours,
---------------------------------------
(Insert Full Name of Stockholder)
---------------------------------------
Signature (individual)
EXHIBIT 6
ESSEX INTERNATIONAL INC.
Common Stock
-------------------
Custody Agreement
The Bank of New York
101 Barclay Street
New York, NY 10286
Gentlemen:
There are delivered to you herewith one or more certificates
("Certificates"), in negotiable and proper deliverable form, representing (i) at
least the number of shares of Class A and Class B Common Stock, par value $0.01
per share (the "Old Common Stock"), of Essex International Inc., a Delaware
corporation (the "Company"), and/or (ii) at least the number of warrants (the
"Warrants") to purchase shares of Common Stock owned by the undersigned and set
forth above the signature of the undersigned at the end of this letter. In the
case of the Old Common Stock, the Certificates have signatures guaranteed with a
medallion stamp by a financial institution participating in a medallion stamp
program or are accompanied by a duly executed stock power or powers, in blank,
bearing the signature of the undersigned so guaranteed; and in the case of the
Warrants, the Certificates include a duly executed form of assignment with
signatures guaranteed with a medallion stamp by a financial institution
participating in a medallion stamp program. The undersigned has also delivered
to you the following documents: (a) if acting as a trustee or in any other
fiduciary or representative capacity, duly certified copies of each trust
instrument, will, letters testamentary or other instrument pursuant to which the
undersigned is authorized to act as a Selling Stockholder (as herein defined),
(b) if a partnership, extracts of any applicable provisions of its partnership
agreement authorizing it to enter into this Custody Agreement and the
Underwriting Agreements (as defined herein), and (c) if a corporation, duly
certified resolutions of its Board of Directors and extracts of any applicable
provisions of its certificate of incorporation and by-laws authorizing it to
enter into this Custody Agreement and the Underwriting Agreements. The
undersigned agrees to deliver to the Attorneys-in-Fact (as defined herein) or to
you such additional documentation as the Attorneys-in-Fact, or either one of
them, or the Company or the Representatives (each as defined herein) or you or
any of their respective counsel may reasonably request to effectuate or confirm
compliance with any of the provisions hereof or of the Underwriting Agreements
(as defined below), all of the foregoing to be in form and substance
satisfactory in all respects to the Attorneys-in-Fact and you. The Certificates
are to be held by you as Custodian for the account of the undersigned and are to
be disposed of by you in accordance with this Custody Agreement. Whenever
reference is made in this Custody Agreement to shares of Common Stock, it shall
refer to shares of Common Stock, par value $.01 per share, of the Company
existing after giving effect to the Stock Split and the Reclassification as
defined in the prospectus (the "Prospectus") included in the Registration
Statement No. 333-22043 relating to the Common Stock (the "Registration
Statement"). Capitalized terms used but not defined herein have the meanings
assigned to such terms in the Underwriting Agreements.
Concurrently with the execution and delivery of this Custody
Agreement, the undersigned has executed an irrevocable power of attorney ("Power
of Attorney") to Richard A. Friedman and Joseph H. Gleberman, or their duly
designated substitutes (individually, an "Attorney-in-Fact" and collectively,
the "Attorneys-in-Fact") authorizing the Attorneys-in-Fact, or any one of them,
to sell at each Time of Delivery (as defined in the Underwriting Agreements) (i)
from the number of shares of Old Common Stock represented by the Certificates
that number of shares of Common
<PAGE>
Stock specified to you in writing by an Attorney-in-Fact which shall be no
greater than the total number (the "Stock Total Number") of shares of Old Common
Stock set forth above the signature of the undersigned at the end of this
letter, as adjusted for the Stock Split and the Reclassification (the "Stock
Adjusted Total Number"), and (ii) that number of Warrants specified to you in
writing by an Attorney-in-Fact which shall be no greater than the total number
(the "Warrant Total Number") of Warrants set forth above the signature of the
undersigned at the end of this letter, as adjusted for the Stock Split and the
Reclassification (the "Warrant Adjusted Total Number"), and for that purpose to
enter into and perform (i) an underwriting agreement (the "U.S. Underwriting
Agreement"), among the Company, Essex Group, Inc. ("Essex"), certain
stockholders of the Company including the undersigned (the "Selling
Stockholders") and Goldman, Sachs & Co., Smith Barney Inc., Donaldson, Lufkin &
Jenrette Securities Corporation and Lehman Brothers Inc., as representatives
(the "U.S. Representatives") of the several underwriters (the "U.S.
Underwriters") to be named in Schedule I thereto; and (ii) an underwriting
agreement (the "International Underwriting Agreement" and, together with the
U.S. Underwriting Agreement, the "Underwriting Agreements") among the Company,
Essex, the Selling Stockholders and Goldman Sachs International, Smith Barney
Inc., Donaldson, Lufkin & Jenrette Securities Corporation and Lehman Brothers
International (Europe), as representatives (the "International Representatives"
and, together with the U.S. Representatives, the "Representatives") of the
several underwriters to be named in Schedule I thereto (the "International
Underwriters" and, together with the U.S. Underwriters, the "Underwriters"). The
aggregate number of Firm Shares (as defined in the Underwriting Agreements) and
Optional Shares (as defined in the Underwriting Agreements) (the Firm Shares and
the Optional Shares, collectively, the "Shares") to be sold by the undersigned
pursuant to the Underwriting Agreements in the offerings (the "Offerings")
thereunder shall be no greater than the Stock Adjusted Total Number of shares of
Common Stock, and the aggregate number of Firm Warrants (as defined in the
Underwriting Agreements) and Optional Warrants (as defined in the Underwriting
Agreements) to be sold by the undersigned pursuant to the Underwriting
Agreements shall be no greater than the Warrant Adjusted Total Number of
Warrants.
You are authorized and directed to hold the Certificates deposited with
you hereunder in your custody, and at each Time of Delivery specified in the
Underwriting Agreements at which the undersigned is selling any Shares and/or
Warrants you shall take all necessary action, as requested in writing, (i) to
cause any and all shares of Old Common Stock to be exchanged for shares of
Common Stock pursuant to the Stock Split and the Reclassification, to effect any
adjustment to the Warrants resulting from the Stock Split or Reclassification
and to cause the Company or the transfer agent and registrar for the Common
Stock to cause the number of Shares and/or Warrants to be sold by the
undersigned to be transferred on the books of the Company into such names as the
Attorneys-in-Fact, or any one of them, or the Representatives shall have
instructed you in writing and to exchange the old certificates representing such
Shares and/or Warrants for new certificates for such Shares and/or Warrants
registered in such names and in such denominations as the Attorneys-in-Fact or
the Representatives shall have instructed you in writing, (ii) to deliver such
new certificates to the Representatives, for the accounts of the Underwriters,
against payment for such Shares and/or Warrants, give receipt for such payment,
and deposit the same to your account, and (iii) to pay such expenses, including
transfer taxes, out of monies on deposit with you for such purpose as you may be
instructed in writing to pay by the Attorneys-in-Fact, or any one of them, and,
when instructed by an Attorney-in-Fact to do so, remit to the undersigned or
such other person as an Attorney-in-Fact may direct the balance, after deducting
such expenses, of the amount received by you as payment for such Shares and/or
Warrants. Promptly after the earlier of notification by any Attorney-in-Fact of
the expiration of the 30 calendar day period following the First Time of
Delivery or notification by the Representatives of the Second Time of Delivery,
as each is provided for in the Underwriting Agreements, you shall return to the
undersigned a new certificate or certificates (which you shall have obtained
from the Company or the transfer agent), representing the number of shares of
Common Stock and/or Warrants, if any, represented by the Certificate(s)
deposited with you which is in excess of the number of Shares and/or Warrants
sold by the undersigned to the Underwriters.
-2-
<PAGE>
If the Underwriting Agreements shall not be entered into and the
transactions contemplated thereby consummated prior to the 45th day after the
date of this Custody Agreement then, upon the written request of the undersigned
to you (accompanied by written notice of termination of the Power of Attorney
addressed to each of the Attorneys-in-Fact, in your care) on or after that date,
you are to return to the undersigned the Certificates deposited with you
hereunder.
Under the terms of the Power of Attorney, the authority conferred
thereby is granted, made and conferred subject to and in consideration of the
interests of the Underwriters and, except as set forth in the Power of Attorney,
is irrevocable and not subject to termination by the undersigned or by operation
of law, and the obligations of the undersigned under the Underwriting Agreements
are similarly not subject to termination by the undersigned. Accordingly, the
Certificates deposited with you hereunder and this Custody Agreement and your
authority hereunder are subject to the interests of the Underwriters, and this
Custody Agreement and your authority hereunder are irrevocable and are not
subject to termination by the undersigned, except as set forth in the preceding
paragraph, or by operation of law, whether by the death or incapacity of the
undersigned (if the undersigned is an individual), the death of any trustee or
executor or the termination of any trust or estate (if the undersigned is a
trust or estate), the dissolution or liquidation of any corporation or
partnership (if the undersigned is a corporation or partnership), or the
occurrence of any other event. If any event referred to in the preceding
sentence should occur before the delivery of the Shares and/or Warrants to be
sold by the undersigned under the Underwriting Agreements, Certificates for such
shall, except as specifically provided in the Underwriting Agreement, be
delivered by you on behalf of the undersigned in accordance with the terms and
conditions of the Underwriting Agreements and this Custody Agreement, and action
taken by you pursuant to this Custody Agreement shall be as valid as if such
event had not occurred, whether or not you or the Attorneys-in-Fact, or any one
of them, shall have received notice of such event.
Until payment of the purchase price for the Shares and/or Warrants to
be sold by the undersigned to the Underwriters has been made to you by or for
the account of the Underwriters, the undersigned shall remain the owner of all
shares of Old Common Stock, shares of Common Stock and/or Warrants represented
by the Certificates and shall have the right to vote all shares of Old Common
Stock or Common Stock represented by the Certificates and to receive all
dividends and distributions thereon.
You shall be entitled to act and rely upon any statement, request,
notice or instructions respecting this Custody Agreement given to you by the
Attorneys-in-Fact, or any one of them; provided, however, that you shall not be
entitled to act on any statement or notice to you with respect to a Time of
Delivery under the Underwriting Agreements, or with respect to the termination
of the Underwriting Agreements, or advising that the Underwriting Agreements
have not been executed and delivered, unless such statement or notice shall have
been confirmed in writing to you by the Representatives.
It is understood that you assume no responsibility or liability to any
person other than to deal with the Certificates, Shares and/or Warrants and the
proceeds from the sale of the Shares and/or Warrants represented by the
Certificates in accordance with the provisions of this Custody Agreement, and
the undersigned agrees to indemnify and hold you harmless from and against all
losses, damages, claims and liabilities arising out of or in connection with
your acting as Custodian hereunder except for such losses, damages, claims and
liabilities due to your negligence, willful misconduct or bad faith.
This Custody Agreement constitutes a representation and warranty by,
and a covenant and agreement of, the undersigned that:
-3-
<PAGE>
1. The undersigned (if the undersigned is a stockholder) has good and
valid title to the shares of Old Common Stock represented by the Certificates
and, upon effectiveness of the Stock Split and the Reclassification, the
undersigned will have, immediately prior to each Time of Delivery (as defined in
the Underwriting Agreements), good and valid title to the Shares to be sold by
the undersigned at such Time of Delivery, free and clear of all liens,
encumbrances, equities or adverse claims and full right, power and authority to
sell, assign, transfer and deliver such Shares, subject to this Custody
Agreement, the Underwriting Agreements and the Power of Attorney; the
undersigned (if the undersigned is a warrantholder) has good and valid title to
the Warrants represented by the Certificates to be sold by the undersigned
immediately prior to each Time of Delivery, free and clear of all liens,
encumbrances, equities or adverse claims and full right, power and authority to
sell, assign, transfer and deliver such Warrants, subject to this Custody
Agreement, the Underwriting Agreements and the Power of Attorney; and upon
delivery of the certificates representing all Shares and/or Warrants to be sold
by the undersigned and payment therefor pursuant to the Underwriting Agreements,
good and valid title to such Shares and/or Warrants, free and clear of all
liens, encumbrances, equities or adverse claims, will pass to the several
Underwriters.
2. The undersigned has, and at all times through the last Time of
Delivery specified in the Underwriting Agreements will have, all consents,
approvals, authorizations and orders necessary for the execution and delivery by
such Selling Stockholder of this Custody Agreement, the Power of Attorney and
the Underwriting Agreements, and for the sale and delivery of the Shares and/or
Warrants to be sold by such Selling Stockholder under the Underwriting
Agreements; and such Selling Stockholder has full right, power and authority to
enter into this Agreement, the Power-of-Attorney and the Underwriting
Agreements. This Custody Agreement and the Power of Attorney have been duly
authorized, executed and delivered by the undersigned and are, and at all times
through the last Time of Delivery will be, valid and binding obligations of the
undersigned. The Underwriting Agreement has been duly authorized by the
undersigned and, when executed and delivered on behalf of the undersigned and
thereafter at all times through the last Time of Delivery, will be valid and
binding obligations of the undersigned. Compliance by the undersigned with all
of the provisions of this Custody Agreement, the Underwriting Agreement and the
Power of Attorney and the consummation of the transactions contemplated herein
and therein will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any statute or any
material indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the undersigned is a party or by which it is bound or to
which any of the property or assets of the undersigned is subject, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the undersigned (if the undersigned is a
corporation), the Partnership Agreement or Articles of Partnership of the
undersigned (if the undersigned is a partnership) or other constituent
documents of the undersigned (if the undersigned is neither a corporation nor a
partnership) or any order to which such Selling Stockholder is bound or any rule
or regulation of any court or governmental agency or body having jurisdiction
over the undersigned or any of the undersigned's properties.
3. The undersigned has carefully reviewed the representations,
warranties, statements and agreements to be made by the undersigned as a Selling
Stockholder in the Underwriting Agreements and does hereby represent, warrant
and agree that (a) such representations, warranties, statements and agreements,
insofar as they relate to the undersigned, are true and correct as of the date
hereof and will be true and correct at all times through the last Time of
Delivery specified in the Underwriting Agreements at which the undersigned is
selling any Shares and/or Warrants and (b) such agreements, insofar as they
relate to the undersigned, have (where applicable) been complied with as of the
date hereof and will be complied with on and after each such Time of Delivery.
4. The undersigned has received and carefully reviewed a copy of
the preliminary prospectus, dated April 2, 1997 (the "Preliminary Prospectus"),
and will so review any amendment to the Preliminary Prospectus upon receipt
thereof. To the extent that any statements or omissions made in the
Registration Statement, any Preliminary
-4-
<PAGE>
Prospectus, the Prospectus or any amendment or supplement thereto are made in
reliance upon and in conformity with written information furnished to the
Company by the undersigned expressly for use therein, such Registration
Statement, Preliminary Prospectus and the Prospectus and any further amendments
or supplements to either the Registration Statement and the Prospectus, did, or
will, when they become effective or are filed with the Securities and Exchange
Commission (the "Commission"), as the case may be, conform in all material
respects to the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations of the Commission thereunder and did not
and will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; and in that regard the undersigned (i)
confirms the accuracy of the information concerning the undersigned and the
undersigned's stockholdings and/or warrantholdings in the Company as set forth
in the Selling Stockholder's Questionnaire (the "Questionnaire") delivered by
the undersigned to the Company, pursuant to which the undersigned elected to
sell the Shares and/or Warrants in the transactions contemplated hereby, (ii)
also confirms the accuracy of the information concerning the undersigned
contained in the Preliminary Prospectus, (iii) agrees immediately to notify the
Company and promptly (but in any event within three business days thereafter) to
confirm the same in writing if, at any time from the date hereof until the
latest of (a) the completion of the public offering of the Shares and the shares
of Common Stock to be received by the Underwriters upon redemption of the
Warrants, (b) the last Time of Delivery for the Shares and Warrants provided for
in the Underwriting Agreements and (c) 25 days after the date of the final
prospectus used in connection with the Offerings, there should be any change
affecting the accuracy of the above-mentioned information, or if any subsequent
version of such section of the prospectus delivered to the undersigned should be
inaccurate, and (iv) agrees that for all purposes of the foregoing
representation and warranty and the similar representations, warranties and
indemnities in the Underwriting Agreements, delivery of this Custody Agreement
and the statements contained herein and in the Questionnaire constitute (and the
absence of any such notice as is referred to in subclause (iii) constitutes on a
continuing basis) written information furnished to the Company expressly for use
in the Preliminary Prospectus, Registration Statement, Prospectus and any such
amendment or supplement thereto.
5. The undersigned hereby covenants and agrees that during the period
beginning from the date of the Underwriting Agreements and continuing to and
including the date one hundred eighty (180) days after the date of the
Prospectus, the undersigned will not offer, sell, contract to sell or otherwise
dispose of, including, without limitation, through the entry into a cash-settled
derivative instrument, except as provided under the Underwriting Agreements, any
shares of Common Stock, any securities of the Company that are substantially
similar to the shares of Common Stock, including but not limited to any
securities that are convertible into or exchangeable for, or that represent the
right to receive, shares of Common Stock, or any such substantially similar
securities (other than upon the conversion or exchange of convertible or
exchangeable securities outstanding as of the date of the Underwriting
Agreements), without the prior written consent of Goldman, Sachs & Co.
The undersigned has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Shares and/or the shares of Common Stock to be received by the Underwriters upon
redemption of the Warrants being sold pursuant to the Underwriting Agreements.
The foregoing representations, warranties and agreements, as well as
those contained in the Selling Stockholder's Questionnaire completed by the
undersigned and submitted to the Company and those contained in the Underwriting
Agreements, are made for the benefit of, and may be relied upon by, the other
Selling Stockholders, the Attorneys-in-Fact, the Company, the Underwriters, the
Custodian and the representatives, agents and counsel of each of the foregoing.
-5-
<PAGE>
No party may assign any of its rights or delegate any of its
obligations under this Custody Agreement without the written consent of all the
other parties, which consent may be withheld in the reasonable discretion of the
party whose consent it sought. Any assignment or delegation in violation of the
preceding sentence shall be null and void.
This Custody Agreement may be modified only by a written amendment
signed by all the parties hereto, and no waiver of any provision hereof shall be
effective unless expressed in a writing signed by the party to be charged.
This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
All notices, instructions, reports and other communications to be given
or made under this Custody Agreement shall be given or made by first-class mail,
postage prepaid, or by telecopy or telephone and shall be confirmed by
first-class mail, postage prepaid
(a) to the Custodian at:
The Bank of New York
101 Barclay Street
New York, NY 10286
Attn: Derivative Products Group
Telephone: (212) 815-5228
Telecopy: (212) 815-5999
(b) to the undersigned at the address as set forth in the Questionnaire
(c) to the Attorneys-in-Fact at:
c/o Essex International, Inc.
1601 Wall Street
Fort Wayne, Indiana 46802
THIS CUSTODY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
-6-
<PAGE>
Please acknowledge your acceptance hereof as Custodian, and receipt of
the Certificates deposited with you hereunder, by executing and returning to the
undersigned the enclosed copy hereof.
Dated: ____________ ___, 1997
Total number of shares of Old Common Stock represented by stock
certificates: _________________
Total number of Warrants represented by warrant certificates: _________________
Stock Total Number of shares of Old Common Stock: __________________
Warrant Total Number of Warrants: ________________
Very truly yours,
______________________________________*
(Insert Full Name of Selling Stockholder)
______________________________________*
Signature (individual)
By:___________________________________*(Seal)
Signature (corporation or partnership)
Name:
Title:
Signature guaranteed by:
By____________________________________
(NOTE: THE GUARANTEE MUST BE DONE WITH A MEDALLION STAMP BY A
FINANCIAL INSTITUTION PARTICIPATING IN A
MEDALLION STAMP PROGRAM.)
- --------
* To be signed or completed, as appropriate, in exactly the same manner as
the shares and/or warrants are registered.
-7-
<PAGE>
CUSTODIAN'S ACKNOWLEDGMENT AND RECEIPT
The Bank of New York, as Custodian, acknowledges acceptance of the
duties of the Custodian under the foregoing Custody Agreement and receipt of the
following Certificates:
THE FOLLOWING TABLE IS TO BE FILLED OUT ONLY WITH RESPECT TO CERTIFICATES
REPRESENTING SHARES OF OLD COMMON STOCK
AND/OR WARRANTS:
No. of Shares of
Cert. Number Old Common Stock No. of Warrants
____________ ________________ _______________
____________ ________________ _______________
____________ ________________ _______________
____________ ________________ _______________
____________ ________________ _______________
____________ ________________ _______________
____________ ________________ _______________
____________ ________________ _______________
____________ ________________ _______________
____________ ________________ _______________
____________ ________________ _______________
____________ ________________ _______________
____________ ________________ _______________
____________ ________________ _______________
Dated:_______________, 1997 The Bank of New York
As Custodian
By:___________________________
Name:
Title:
-8-
