EXHIBIT 4
Essex International Inc.
Common Stock
(par value of $.01 per share)
Underwriting Agreement
(International Version)
April 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:
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 Xxxxxxx,
Sachs & Co., Xxxxx Xxxxxx Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation and Xxxxxx Brothers Inc. are acting
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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 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 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) 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
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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.
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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 Company and the Selling Stockholders
shall be delivered by or on behalf of the Company and 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
Company and 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 April 23, 1997 or such other time and date as Xxxxxxx, 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
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 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 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 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
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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
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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
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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
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"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.
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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 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.
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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/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
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/ Xxxxxx X. Power
Name: Xxxxxx X. Power
Title: Assistant Secretary
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Chase Equity Associates
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
Xxxx X. Xxx
Xxxxxxx X. Xxxxx
Xxxxx X. XxXxxxx
Xxxxxxxxx X. Xxxxxx
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Attorney-in-Fact
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/ Xxxxxx 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....... 274,386 141,025 44,275 16,460
Xxxxx Xxxxxx Inc.................. 274,386 141,024 44,274 16,459
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation........... 154,342 79,326 24,904 9,258
Xxxxxx Brothers International
(Europe).......................... 154,342 79,326 24,904 9,258
----------- ----------- ----------- -----------
Total........... 857,456 440,701 138,357 51,435
=========== =========== =========== ===========
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SCHEDULE II
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
The Company.............................. 600,000 0 0 0
The Selling Stockholders:
GS Capital Partners, L.P.(a)........... 11,547 218,507 79,492 0
Xxxxx Xxxxxx Fund 1992, L.P.(a)........ 156 3,496 1,071 0
Xxxxxx Xxxxxx Xxxx 0000, 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
Xxxx X. Xxx(e)......................... 5,000 0 0 0
Xxxxxxx X. Xxxxx(e).................... 15,000 0 0 0
Xxxxx X. XxXxxxx(e).................... 3,749 0 0 0
Xxxxxxxxx X. Xxxxxx(e)................. 16,000 0 0 0
------- ------- ------- -------
Total........................... 857,456 440,701 138,357 51,435
======= ======= ======= =======
(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 has appointed Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxx and Xxxxx X. Xxxxxx, and each of them, as the Attorneys-in-Fact for such
Selling Stockholder.
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