EXHIBIT 3
Essex International Inc.
Common Stock
(par value $.01 per share)
Underwriting Agreement
(U.S. Version)
April 17, 1997
Xxxxxxx, Xxxxx & Co.,
Xxxxx Xxxxxx Inc.,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation,
Xxxxxx Brothers Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
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 Xxxxxxx Sachs International, Xxxxx Xxxxxx Inc., Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation and Xxxxxx 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 Xxxxxxx,
Xxxxx & 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 Xxxxxxx, 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 Xxxxxxx,
Xxxxx & 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 Xxxxx Xxxxxx Inc.
as, and Xxxxx Xxxxxx 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.
Xxxxx Xxxxxx 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 Xxxxxxx, 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 Xxxxxxx, Xxxxx & 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, Sachs & Co. pursuant to the prior sentence may be made, at
the option of Xxxxxxx, Xxxxx & 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, Sachs & 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, Xxxxx & 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 Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx, Xxxxx & Co. of
the Underwriters' election to purchase such Optional Shares and the Optional
Warrants, or such other time and date as Xxxxxxx, 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 Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (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 Xxxxxxx, 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 Xxxxxxx, Xxxxx & 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, Xxxxxxx, Sachs & Co.
agrees to pay New York State stock transfer tax, and the Company agrees to
reimburse Xxxxxxx, Xxxxx & 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) Xxxxxxxx & Xxxxxxxx, 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) Xxxxx X. Xxxxxx, 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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(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
-14-
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 & Xxxxx, 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
-15-
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;
-16-
(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
-17-
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., Xxxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X. XxXxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxx, Xxxxx X. Xxxx and Xxxxxxx X. Xxxxxxxxx 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 Xxxxxxx, 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,
-19-
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 Xxxxxxx,
Xxxxx & 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 Xxxxxxx, 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
-20-
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 Xxxxx Xxxxxx 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 Xxxxx Xxxxxx 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-
-23-
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 Xxxxxxx, 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 Xxxxxxx, Xxxxx &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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-
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-
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 & Co.
Xxxxx Xxxxxx Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Xxxxxx Brothers Inc.
By: /s/ Xxxxxxx, Xxxxx & Co.
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
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
Xxxxxxx, Xxxxx & Co.......................... 857,643 440,797 138,387 51,446
Xxxxx Xxxxxx Inc............................. 857,643 440,797 138,387 51,446
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation...................... 514,473 264,421 83,014 30,861
Xxxxxx Brothers Inc.......................... 514,473 264,421 83,014 30,861
Chase Securities Inc......................... 54,803 28,167 8,843 3,287
Xxxxxx Gull Relland & XxXxxxxx Inc........... 30,197 15,520 4,873 1,811
X.X. Xxxxxxx & Sons, Inc..................... 54,803 28,167 8,843 3,287
EVEREN Securities, Inc....................... 54,803 28,167 8,843 3,287
Xxxxxx Xxxx LLC.............................. 30,197 15,520 4,873 1,811
Interstate/Xxxxxxx Lane Corporation.......... 30,197 15,520 4,873 1,811
Xxxxxx X. Xxxxx & Co., L.P................... 30,197 15,520 4,873 1,811
XxXxxxxx & Company Securities, Inc........... 30,197 15,520 4,873 1,811
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated....................... 54,803 28,167 8,843 3,287
NatCity Investments, Inc..................... 30,197 15,520 4,873 1,811
Xxxxxxxxxxx & 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
Xxxxxxxx Xxxxxx Refsnes, Inc................. 30,197 15,520 4,873 1,811
Xxxxx & Co., L.L.C........................... 30,197 15,520 4,873 1,811
Xxxxxxxx Xxxxxxxx & Co. Incorporated......... 54,803 28,167 8,843 3,287
Xxxxxx, Xxxxxxxx & Company, Incorporated..... 30,197 15,520 4,873 1,811
--------- ---------- ---------- ---------
Total............................... 3,429,823 1,762,805 553,427 205,740
========= ========== ========== =========
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SCHEDULE II
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
The Company................................ 2,400,000 0 0 0
The Selling Stockholders:
GS Capital Partners, L.P.(a)............. 46,190 874,031 317,965 0
Xxxxx Xxxxxx Fund 1992, L.P.(a).......... 622 13,984 4,284 0
Xxxxxx Xxxxxx Xxxx 0000, 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
Xxxx X. Xxx(e)........................... 20,000 0 0 0
Xxxxxxx X. Xxxxx(e)...................... 60,000 0 0 0
Xxxxx X. XxXxxxx(e)...................... 14,996 0 0 0
Xxxxxxxxx X. Xxxxxx(e)................... 64,000 0 0 0
----------- ----------- ---------- ----------
Total............................. 3,429,823 1,762,805 553,426 205,740
=========== =========== ========== ==========
(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 and DeBrauw Blackstone Westbroik, 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 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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