Conformed Copy
ESSEX INTERNATIONAL INC.
COMMON STOCK
(PAR VALUE OF $0.01 PER SHARE)
UNDERWRITING AGREEMENT
(INTERNATIONAL VERSION)
September 17, 1997
Xxxxxxx Xxxxx International,
Xxxxx Xxxxxx Inc.,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation,
Xxxxxx Brothers International (Europe),
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman Xxxxx International,
Peterborough Court,
000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx.
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders") of Essex International Inc., a Delaware corporation (the
"Company"), propose, subject to the terms and conditions stated herein, to sell
to the Underwriters named in Schedule I hereto (the "Underwriters") (a) an
aggregate of 778,001 shares (the "Firm Shares") of Common Stock, par value $0.01
per share ("Stock"), of the Company and (b) an aggregate of 68,266 warrants to
purchase shares of Stock (the "Firm Warrants") and, at the election of the
Underwriters, up to (a) 116,191 additional shares of Stock (the "Optional
Shares") and (b) 10,194.5 additional warrants to purchase shares of Stock (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 certain Selling Stockholders of up to a total of 3,576,770 shares of
Stock and (b) the sale by certain Selling Stockholders of up to a total of
313,846 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 Xxxxxxx, Sachs & Co.,
Xxxxx Xxxxxx Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and
Xxxxxx Brothers Inc. are acting 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 Xxxxxxx Xxxxx
International, Xxxxx Xxxxxx Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation and Xxxxxx Brothers International (Europe), the Lead Managers
hereunder, with Xxxxxxx, Xxxxx & Co. prior to exercising the rights of the
Underwriters under Section 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
Xxxxxxx, Sachs & Co. shall be to the addressees of this Agreement and to Xxxxxxx
Xxxxx 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) 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 a purchase price per share of
$36.10, 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 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 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 $30.67 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
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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, as the case may be, 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 116,191 Optional Shares and up to
10,194.5 Optional Warrants, as the case may be, at the purchase price per share
or per Warrant set forth in the paragraph above, as the case may be, 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.
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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 Xxxxxxx, Xxxxx & Co. may request upon at least
forty-eight hours' prior notice to the Selling Stockholders shall be delivered
by or on behalf of the Selling Stockholders to Xxxxxxx, 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 Custodian in Federal Funds (same
day). The delivery of the Shares to Xxxxxxx, Xxxxx & Co. pursuant to the prior
sentence may be made, at the option of Xxxxxxx, 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 Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 September 23, 1997 or such other
time and date as Xxxxxxx, Sachs & Co. and the Attorneys-in-Fact 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 Xxxxxxx, Xxxxx & Co. in the
written notice given by Xxxxxxx, Sachs & Co. of the Underwriters' election to
purchase such Optional Shares and the Optional Warrants, or such other time and
date as Xxxxxxx, Xxxxx & 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 7 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 7(k) of the U.S.
Underwriting Agreement will be delivered at the offices of Xxxxxxxx & Xxxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (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 5 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 6 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 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 their
respective obligations hereunder
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theretofore to be performed, and additional conditions identical to those set
forth in Section 7 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
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supplement in reliance upon and in conformity with written information furnished
to the Company by 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
appropriate 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
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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 connection 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 and to each person, if any, who controls the Company or
any Selling Stockholder within the meaning of the Act. Further, with respect to
the Selling Stockholders (other than WCEP Pte Ltd), it is understood and agreed
by the parties hereto that the provisions of Section 5 of the Registration
Rights Agreement apply to the transactions contemplated by this Agreement.
(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 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 Selling Stockholders
that you have so arranged for the purchase of such Shares, or the Selling
Stockholders notify you that they have so arranged for the purchase of such
Shares, you or 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
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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 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
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 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 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
Selling Stockholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
Essex or the Selling Stockholders, except for the expenses to be borne by the
Company, Essex 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, Essex, 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, Essex 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,
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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.
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,
000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, 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 or Essex, 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, Essex 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 or Essex and each person who controls the Company, Essex, 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,
Essex 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.
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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/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, General Counsel
and Secretary
Essex Group, Inc.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, General Counsel
and Secretary
GS Capital Partners, X.X.
Xxxxx Street Fund 1992, L.P.
Bridge Street Fund 1992, L.P.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
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/ Xxx Xxxxx
-----------------------------------------
Name: Xxx Xxxxx
Title: Vice President
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Chase Equity Associates
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
WCEP Pte Ltd
By: /s/ Kunnasagaran Xxxxxxxx
-----------------------------------------
Name: Kunnasagaran Xxxxxxxx
Title: Director
Accepted as of the date hereof:
Xxxxxxx Xxxxx International
Xxxxx Xxxxxx Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Xxxxxx Brothers International (Europe)
By: Xxxxxxx Xxxxx International
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
(Attorney-in-Fact)
On behalf of each of the Underwriters
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SCHEDULE I
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
----------- ------------------- ------------------- -------------------- ---------------------
Xxxxxxx Xxxxx International....... 213,951 18,773 31,952 2,802.5
Xxxxx Xxxxxx Inc.................. 213,950 18,773 31,953 2,804
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation........... 175,050 15,360 26,143 2,294
Xxxxxx Brothers International
(Europe)......................... 175,050 15,360 26,143 2,294
------------------- ------------------- -------------------- ---------------------
Total........... 778,001 68,266 116,191 10,194.5
=================== =================== ==================== ====================
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SCHEDULE II
NUMBER OF NUMBER OF
OPTIONAL SHARES TO OPTIONAL
TOTAL NUMBER OF TOTAL NUMBER OF BE SOLD IF WARRANTS TO BE
OF FIRM SHARES FIRM WARRANTS TO MAXIMUM OPTION SOLD MAXIMUM
TO BE SOLD BE SOLD EXERCISED OPTION EXERCISED
------------------- ------------------- -------------------- ---------------------
The Selling Stockholders:
GS Capital Partners, L.P.(a)*.......... 365,569 0 55,955 0
Xxxxx Xxxxxx Xxxx 0000, L.P.(a)*....... 5,679 0 0 0
Bridge Street Fund 1992, L.P.(a)*...... 3,422 0 0 0
DLJ International Partners,
C.V.(b)*........................ 41,097 0 6,138 0
DLJ Merchant Banking Partners,
L.P.(c)*........................ 0 37,562 0 5,610
DLJ Merchant Banking Funding,
Inc.(c)*........................ 0 18,249 0 2,725
DLJ First ESC LLC(c)*.................. 0 12,455 0 1,860
Chase Equity Associates(d)*............ 193,959 0 28,967 0
WCEP Pte Ltd(e)*....................... 168,275 0 25,131 0
------------------- ------------------- -------------------- ---------------------
TOTAL........................... 778,001 68,266 116,191 10,194.5
(a) This Selling Stockholder is represented by Xxxxx X. Xxxxxxxxx, 00
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 and has appointed Xxxxxxx X. Xxxxxxxx and
Xxxxxx X. Xxxxxxxxx, and each of them, as the Attorneys-in-Fact for such Selling
Stockholder.
(b) This Selling Stockholder is represented by Xxxxxxx X. Xxxx, 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000 and De Brauw Blackstone Westbroek, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000 and has appointed Xxx X. Xxxxx and Xxxxxxx Xxxxxxxxx,
and each of them, as the Attorneys-in-Fact for such Selling Stockholder.
(c) This Selling Stockholder is represented by Xxxxxxx X. Xxxx, 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000 and has appointed Xxx Xxxxx and Xxxxxxx
Xxxxxxxxx, and each of them, as the Attorneys-in-Fact for such Selling
Stockholder.
(d) This Selling Stockholder is represented by White & Case, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000 and has appointed Xxxxx X. Xxxxxxxx
and Xxxx M.B. X'Xxxxxx, and each of them, as the Attorneys-in-Fact for such
Selling Stockholder.
(e) This Selling Stockholder is represented by Tan, JinHwee, Xxxxxx &
Lim ChooEng and has appointed Xxxxxx X.X. Xxxxxxxx as the Attorney-in-Fact for
such Selling Stockholder.
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