-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, P+k/K78FA8rnMDiIbfZHv0cXuDYqTJkZYdkrLDCvJGBmcAIbC9YBse5bUlzgw9m1 kGzamEyZ6t5TwkzOB02JRg== 0000891836-97-000252.txt : 19970526 0000891836-97-000252.hdr.sgml : 19970526 ACCESSION NUMBER: 0000891836-97-000252 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19970523 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ESSEX INTERNATIONAL INC / CENTRAL INDEX KEY: 0000846919 STANDARD INDUSTRIAL CLASSIFICATION: DRAWING AND INSULATING NONFERROUS WIRE [3357] IRS NUMBER: 133496934 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-50997 FILM NUMBER: 97613990 BUSINESS ADDRESS: STREET 1: 1601 WALL ST CITY: FT WAYNE STATE: IN ZIP: 46802 BUSINESS PHONE: 2194614000 FORMER COMPANY: FORMER CONFORMED NAME: BCP/ESSEX HOLDINGS INC DATE OF NAME CHANGE: 19930826 FORMER COMPANY: FORMER CONFORMED NAME: MS ESSEX HOLDINGS INC DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ESSEX INTERNATIONAL INC / CENTRAL INDEX KEY: 0000846919 STANDARD INDUSTRIAL CLASSIFICATION: DRAWING AND INSULATING NONFERROUS WIRE [3357] IRS NUMBER: 133496934 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1601 WALL ST CITY: FT WAYNE STATE: IN ZIP: 46802 BUSINESS PHONE: 2194614000 FORMER COMPANY: FORMER CONFORMED NAME: BCP/ESSEX HOLDINGS INC DATE OF NAME CHANGE: 19930826 FORMER COMPANY: FORMER CONFORMED NAME: MS ESSEX HOLDINGS INC DATE OF NAME CHANGE: 19920703 SC 13D 1 SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 Essex International Inc. (Name of Issuer) Common Stock (par value $0.01 per share) (Title of Class of Securities) 297025108 (CUSIP Number) David J. Greenwald, Esq. Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 (212) 902-1000 (Name, address and telephone number of person authorized to receive notices and communications) April 30, 1997 (Date of Event which requires Filing of this Statement) If a filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. NOTE: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. - -------------------- CUSIP NO. 297025108 - -------------------- - ------------------------------------------------------------ 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Goldman, Sachs & Co. - ------------------------------------------------------------ 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------ 3. SEC USE ONLY - ------------------------------------------------------------ 4. SOURCE OF FUNDS See Item 3. - ------------------------------------------------------------ 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [X] - ------------------------------------------------------------ 6. CITIZENSHIP OR PLACE OF ORGANIZATION New York - ------------------------------------------------------------ 7. SOLE VOTING POWER NUMBER OF 0 SHARES ---------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 2,243,377.5 EACH ---------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH ---------------------------------------- 10. SHARED DISPOSITIVE POWER 2,243,377.5 - ------------------------------------------------------------ 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,243,377.5 - ------------------------------------------------------------ 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------ 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.7% - ------------------------------------------------------------ 14. TYPE OF REPORTING PERSON BD-PN-IA - ------------------------------------------------------------ -2- - -------------------- CUSIP NO. 297025108 - -------------------- - ------------------------------------------------------------ 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON The Goldman Sachs Group, L.P. - ------------------------------------------------------------ 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------ 3. SEC USE ONLY - ------------------------------------------------------------ 4. SOURCE OF FUNDS See Item 3. - ------------------------------------------------------------ 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - ------------------------------------------------------------ 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------ 7. SOLE VOTING POWER NUMBER OF 0 SHARES ---------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 2,243,377.5 EACH ---------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH ---------------------------------------- 10. SHARED DISPOSITIVE POWER 2,243,377.5 - ------------------------------------------------------------ 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,243,377.5 - ------------------------------------------------------------ 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------ 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.7% - ------------------------------------------------------------ 14. TYPE OF REPORTING PERSON HC-PN - ------------------------------------------------------------ -3- - -------------------- CUSIP NO. 297025108 - -------------------- - ------------------------------------------------------------ 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS Advisors, L.P. - ------------------------------------------------------------ 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------ 3. SEC USE ONLY - ------------------------------------------------------------ 4. SOURCE OF FUNDS See Item 3. - ------------------------------------------------------------ 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - ------------------------------------------------------------ 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------ 7. SOLE VOTING POWER NUMBER OF 0 SHARES ---------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 2,107,621 EACH ---------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH ---------------------------------------- 10. SHARED DISPOSITIVE POWER 2,107,621 - ------------------------------------------------------------ 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,107,621 - ------------------------------------------------------------ 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------ 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.3% - ------------------------------------------------------------ 14. TYPE OF REPORTING PERSON PN - ------------------------------------------------------------ -4- - -------------------- CUSIP NO. 297025108 - -------------------- - ------------------------------------------------------------ 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS Capital Partners, L.P. - ------------------------------------------------------------ 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------ 3. SEC USE ONLY - ------------------------------------------------------------ 4. SOURCE OF FUNDS See Item 3. - ------------------------------------------------------------ 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - ------------------------------------------------------------ 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------ 7. SOLE VOTING POWER NUMBER OF 0 SHARES ---------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 2,107,621 EACH ---------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH ---------------------------------------- 10. SHARED DISPOSITIVE POWER 2,107,621 - ------------------------------------------------------------ 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,107,621 - ------------------------------------------------------------ 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------ 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.3% - ------------------------------------------------------------ 14. TYPE OF REPORTING PERSON PN - ------------------------------------------------------------ -5- - -------------------- CUSIP NO. 297025108 - -------------------- - ------------------------------------------------------------ 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Stone Street Fund 1992, L.P. - ------------------------------------------------------------ 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------ 3. SEC USE ONLY - ------------------------------------------------------------ 4. SOURCE OF FUNDS See Item 3. - ------------------------------------------------------------ 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - ------------------------------------------------------------ 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------ 7. SOLE VOTING POWER NUMBER OF 0 SHARES ---------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 28,396 EACH ---------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH ---------------------------------------- 10. SHARED DISPOSITIVE POWER 28,396 - ------------------------------------------------------------ 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 28,396 - ------------------------------------------------------------ 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------ 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% - ------------------------------------------------------------ 14. TYPE OF REPORTING PERSON PN - ------------------------------------------------------------ -6- - -------------------- CUSIP NO. 297025108 - -------------------- - ------------------------------------------------------------ 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Bridge Street Fund 1992, L.P. - ------------------------------------------------------------ 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------ 3. SEC USE ONLY - ------------------------------------------------------------ 4. SOURCE OF FUNDS See Item 3. - ------------------------------------------------------------ 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - ------------------------------------------------------------ 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------ 7. SOLE VOTING POWER NUMBER OF 0 SHARES ---------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 17,110.5 EACH ---------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH ---------------------------------------- 10. SHARED DISPOSITIVE POWER 17,110.5 - ------------------------------------------------------------ 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 17,110.5 - ------------------------------------------------------------ 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------ 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% - ------------------------------------------------------------ 14. TYPE OF REPORTING PERSON PN - ------------------------------------------------------------ -7- - -------------------- CUSIP NO. 297025108 - -------------------- - ------------------------------------------------------------ 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Stone Street Performance Corp. - ------------------------------------------------------------ 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------ 3. SEC USE ONLY - ------------------------------------------------------------ 4. SOURCE OF FUNDS See Item 3. - ------------------------------------------------------------ 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - ------------------------------------------------------------ 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------ 7. SOLE VOTING POWER NUMBER OF 0 SHARES ---------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 45,506.5 EACH ---------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH ---------------------------------------- 10. SHARED DISPOSITIVE POWER 45,506.5 - ------------------------------------------------------------ 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 45,506.5 - ------------------------------------------------------------ 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------ 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.2% - ------------------------------------------------------------ 14. TYPE OF REPORTING PERSON CO - ------------------------------------------------------------ -8- SCHEDULE 13D RELATING TO THE COMMON STOCK OF ESSEX INTERNATIONAL INC. Item 1. Security and Issuer. This Statement on Schedule 13D relates to the Common Stock, par value $.01 per share (the "Common Stock"), of Essex International Inc., a Delaware corporation (the "Company"). The principal executive offices of the Company are located at 1601 Wall Street, Fort Wayne, Indiana 46802. Item 2. Identity and Background. This Statement is being filed by GS Capital Partners, L.P. ("GS Capital"), GS Advisors, L.P. ("GS Advisors"), Stone Street Fund 1992, L.P. ("Stone Street"), Bridge Street Fund 1992, L.P. ("Bridge Street" and together with GS Capital and Stone Street, the "Limited Partnerships"), Stone Street Performance Corp. ("Performance"), Goldman, Sachs & Co. ("GS") and The Goldman Sachs Group, L.P. ("GS Group", and together with GS, GS Advisors, Performance and the Limited Partnerships, the "Filing Persons")1. As of May 13, 1997, GS and GS Group may be deemed to indirectly own beneficially 2,153,127.5 shares of Common Stock through the Limited Partnerships. In addition, as of May 13, 1997, GS, and GS Group indirectly, may be deemed to own beneficially 90,250 shares of Common Stock held in client accounts with respect to which GS or employees of GS have voting or investment discretion, or both ("Managed Accounts"). GS and GS Group each disclaims beneficial ownership of shares of Common Stock (i) owned by the Limited Partnerships to the extent of partnership interests in the Limited Partnerships held by persons other than GS, GS Group or their affiliates and (ii) held in Managed Accounts. GS Capital, a Delaware limited partnership, was formed for the purpose of investing in equity and equity-related securities primarily acquired or issued in leveraged acquisitions, reorganizations and other private equity transactions. GS Advisors, a Delaware limited partnership, is the sole general partner of GS Capital. Stone Street and Bridge Street, each a Delaware limited partnership, were formed for the purpose of investing in equity and equity-related securities primarily acquired or issued in leveraged acquisitions, reorganizations and other private equity transactions and in other financial - -------- 1 Neither the present filing nor anything contained herein shall be construed as an admission that any Filing Person constitutes a "person" for any purposes other than Section 13(d) of the Securities Exchange Act of 1934 or that the Filing Persons constitute a "group" for any purpose. -9- instruments. Performance, a Delaware corporation, is the sole general partner of Stone Street and the sole managing general partner of Bridge Street. GS, a New York limited partnership, is an investment banking firm and a member of the New York Stock Exchange, Inc. and other national exchanges. GS also serves as the investment manager for GS Capital. GS Group, one of the general partners of GS, owns a 99% interest in GS. GS Group is a Delaware limited partnership and holding partnership that engages (directly and indirectly through subsidiaries or affiliated companies or both) in the business of buying and selling securities, both foreign and domestic, and in making investments on behalf of its partners. The other general partner of GS is The Goldman, Sachs & Co. L.L.C., a Delaware limited liability company ("GS L.L.C."), which is wholly-owned by GS Group and The Goldman Sachs Corporation, a Delaware corporation ("GS Corp."). GS Corp. is the sole general partner of GS Group. The principal business address of each Filing Person, GS L.L.C. and GS Corp., is 85 Broad Street, New York, NY 10004. The name, business address, present principal occupation or employment and citizenship of each director and of each member of the executive committee of GS Corp. and GS L.L.C. and of each member of the executive committee of GS Group and GS are set forth in Schedule I hereto and are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each director and each executive officer of GS Advisors, Inc., a Delaware corporation that is the sole general partner of GS Advisors, are set forth in Schedule II-A hereto and are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each director and each executive officer of Performance are set forth on Schedule II-B hereto and are incorporated herein by reference. During the last five years, none of the Filing Persons, or, to the knowledge of each of the Filing Persons, any of the persons listed on Schedule I, II-A or II-B hereto, (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) except as set forth in Schedule III to this Schedule 13D, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. On October 9, 1992, GS Capital acquired 4,264,986 shares of class A common stock, par value $.01 per share (the "Class A Common Stock"), of the Company, for $12,187,500 in cash, Stone Street acquired 68,240 shares of Class A Common Stock for $195,000 in cash and Bridge Street acquired 41,119 shares of Class A Common Stock for $117,500 in cash. On the same date, GS Capital acquired, for $1,638,807 in cash, 2,185,076 warrants ("Warrants") to purchase shares of Class A Common Stock, Stone -10- Street acquired 34,961 Warrants for $26,221 in cash and Bridge Street acquired 21,066 Warrants for $15,800 in cash. Each such Warrant entitled the holder to purchase one share of Class A Common Stock at an exercise price of $2.85757 per share, subject to certain adjustments. On July 3, 1996, GS Capital made a further acquisition of 800,000 shares of Class A Common Stock at a purchase price of $4,000,000 in cash. In connection with the Company's initial public offering (the "IPO"), the Class A Common Stock was reclassified into Common Stock and was subject to a two-for-one reverse stock split and the Warrants were adjusted for such reclassification and stock split. On April 23, 1997, in connection with the IPO, GS Capital sold 57,737 shares of Common Stock and all of its 1,092,538 Warrants, Stone Street sold 778 shares of Common Stock and 17,480 of its 17,480.5 Warrants and Bridge Street sold 469 shares of Common Stock and all of its 10,533 Warrants to the Underwriters (as defined below). On or about April 23, 1997, Stone Street surrendered its remaining 0.5 Warrant to the Company. On May 1, 1997, in connection with the Underwriters' exercise of their over-allotment options in the IPO, GS Capital sold an additional 367,135 shares of Common Stock, Stone Street sold an additional 4,946 shares of Common Stock and Bridge Street sold an additional 2,980 shares of Common Stock to the Underwriters. All of the sales of Common Stock and Warrants by the Limited Partnerships to the Underwriters in connection with the IPO were at a price of $15.98 per share of Common Stock and $10.6077684 per Warrant, in cash. As of May 13, 1997, GS held 90,250 shares of Common Stock for Managed Accounts which were acquired in the ordinary course of business on or after April 23, 1997. In addition, since April 23, 1997, GS has purchased and sold shares of Common Stock in certain ordinary course trading activities related to the underwriting of the IPO. All such transactions are set forth on Schedule IV hereto and, except where otherwise specified on Schedule IV, were effected in the over-the-counter market. The aggregate consideration for the purchases listed on Schedule IV was $57,159,865.20. The funds used by the Limited Partnerships to purchase the shares of Class A Common Stock and Warrants discussed above were obtained by the Limited Partnerships from capital contributions by the partners of the Limited Partnerships and from the Limited Partnerships' available funds. The funds used to purchase shares of Common Stock for the Managed Accounts came from client funds. None of the persons listed on Schedules I, II-A or II-B hereto has contributed any funds or other consideration towards the purchase of the securities of the Company, except insofar as they may be general or limited partners of the Limited Partnerships and have made capital contributions to such Limited Partnerships, as the case may be. Item 4. Purpose of the Transaction. -11- The Shares of Common Stock and Warrants were acquired by the Filing Persons for investment purposes. As of the date of this statement, none of the Filing Persons has any plan or proposal which relates to or would result in any of the actions set forth in parts (a) through (j) of Item 4 of Schedule 13D, other than in connection with the Registration Rights Agreement, the Underwriting Agreements and the Custody Agreements, each as defined and described in Item 6 below. Each Filing Person expects to evaluate on an ongoing basis the Company's financial condition, business operations and prospects, the market price of the Common Stock, conditions in the securities markets generally, general economic and industry conditions and other factors. Accordingly, each Filing Person reserves the right to change its plans and intentions at any time, as it deems appropriate. In particular, each Filing Person may, subject to the restrictions discussed in Item 6 below and the restrictions contained in the Securities Act of 1933 (the "Securities Act"), at any time and from time to time acquire additional shares of Common Stock or securities convertible or exchangeable for Common Stock in public or private transactions; dispose of shares of Common Stock or other securities in public or private transactions; and/or enter into privately negotiated derivative transactions with institutional counterparties to hedge the market risk of some or all of its positions in the Common Stock or other securities. Any such transactions may be effected at any time and from time to time. To the knowledge of each Filing Person, each of the persons listed on Schedules I, II-A and II-B hereto may make the same evaluation and may reserve the same rights. Item 5. Interest in Securities of the Issuer. (a) As of May 13, 1997, GS Capital beneficially owned, and GS Advisors may be deemed to beneficially own, an aggregate of 2,107,621 shares of Common Stock, representing approximately 7.3% of the shares of Common Stock reported to be outstanding as of May 1, 1997 (as reported in the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997 (the "Company's 10-Q")). As of May 13, 1997, Stone Street beneficially owned an aggregate of 28,396 shares of Common Stock representing approximately 0.1% of the shares of Common Stock reported to be outstanding as of May 1, 1997 (as reported in the Company's 10-Q). As of May 13, 1997, Bridge Street beneficially owned an aggregate of 17,110.5 shares of Common Stock, representing approximately 0.1% of the shares of Common Stock reported to be outstanding as of May 1, 1997 (as reported in the Company's 10-Q). As of May 13, 1997, Performance may be deemed to beneficially own an aggregate of 45,506.5 shares of Common Stock, which are beneficially owned by Stone Street and Bridge Street as described above, representing approximately 0.2% of the -12- shares of Common Stock reported to be outstanding as of May 1, 1997 (as reported in the Company's 10-Q). As of May 13, 1997, GS may be deemed to beneficially own an aggregate of 2,243,378 shares of Common Stock, including (i) the 2,153,127.5 shares of Common Stock beneficially owned by the Limited Partnerships described above, and (ii) the 90,250 shares of Common Stock held in Managed Accounts, representing in the aggregate approximately 7.7% of the Common Stock reported to be outstanding as of May 1, 1997 (as reported in the Company's 10-Q). As of May 13, 1997, GS Group may be deemed to beneficially own an aggregate of 2,243,378 shares of Common Stock, including (i) the 90,250 shares of Common Stock held in Managed Accounts and (ii) the 2,153,127.5 shares of Common Stock beneficially owned by the Limited Partnerships, representing in the aggregate approximately 7.7% of the shares of Common Stock reported to be outstanding as of May 1, 1997 (as reported in the Company's 10-Q). GS Group and GS disclaim beneficial ownership of (i) the shares of Common Stock beneficially owned by the Limited Partnerships to the extent of partnership interests in the Limited Partnerships held by persons other than GS Group, GS or their affiliates and (ii) the shares of Common Stock held in Managed Accounts. None of the Filing Persons beneficially owns any shares of Common Stock as of May 13, 1997 other than as set forth herein. (b) Each Filing Person shares the power to vote or direct the vote and to dispose or direct the disposition of shares of Common Stock beneficially owned by such Filing Person as indicated in the second through eighth pages of this filing. (c) Except as set forth in Item 3 and Schedule IV and except, with respect to GS, in its capacity as an underwriter in the IPO (as further described in Item 6), no transactions in the Common Stock were effected by the Filing Persons or, to their knowledge, any of the persons listed on Schedules I, II-A or II-B hereto, during the past 60 days. Schedule IV sets forth transactions in the Common Stock which have been effected by GS during the period from March 1, 1997 through May 13, 1997. The sale of 434,045 shares of Common Stock and 1,120,551 Warrants by the Limited Partnerships, described in Item 3, were made pursuant to the Underwriting Agreements for cash. The purchases by GS set forth on Schedule IV were made in the ordinary course of business for the benefit of the Managed Accounts and in certain ordinary course trading activities related to the underwriting of the IPO. Except where otherwise specified on Schedule IV, all of these transactions were effected in the over-the-counter market. (d) Except in accordance with the Custody Agreements, as described in Item 6 below, no other person is known by any Filing Person to have the right to -13- receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Common Stock beneficially owned by any Filing Person. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. 1. The Limited Partnerships are parties to a Registration Rights Agreement with the Company, dated as of October 9, 1992, as amended by Amendment No. 1 thereto, dated as of June 5, 1995 (as so amended, the "Registration Rights Agreement"). Pursuant to the Registration Rights Agreement, the Limited Partnerships have the ability to require (a "Demand") the Company to register any or all of the Common Stock held by them in a public offering pursuant to the Securities Act. The Limited Partnerships have the right to make two Demands plus an additional Demand in certain circumstances. Demand registrations are subject to the right of the managing underwriter of the related offering to restrict the size of the registration if the number of shares requested to be sold cannot be sold within a price range acceptable to the selling stockholders. Pursuant to the Registration Rights Agreement, the Limited Partnerships also have the right to "piggyback" or include their Common Stock in any registration of Common Stock made by the Company, subject to the right of the managing underwriter to restrict the size of the registration if the number of shares requested to be sold by the piggyback stockholders would have an adverse effect on the offering. Expenses, other than underwriters discounts and commissions, incurred in connection with such Demand or piggyback registration pursuant to the Registration Rights Agreement are to be paid by the Company. The Company also has agreed to indemnify the Limited Partnerships against certain liabilities, including those arising under the Securities Act. The foregoing description of the Registration Rights Agreement is subject to, and qualified in its entirety by reference to, the Registration Rights Agreement, which is filed as an exhibit to this Schedule 13D. 2. In connection with the IPO, the Limited Partnerships entered into an Underwriting Agreement, dated April 17, 1997 (the "U.S. Underwriting Agreement"), among the Company, Essex Group, Inc. ("Essex"), the selling stockholders listed in Schedule II thereto (the "Selling Stockholders") and GS, Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation and Lehman Brothers Inc., as representatives of the several underwriters listed in Schedule I thereto (the "U.S. Underwriters"), and an Underwriting Agreement, dated April 17, 1997 (the "International Underwriting Agreement" and, together with the U.S. Underwriting Agreement, the "Underwriting Agreements"), among the Company, Essex, the Selling Stockholders and Goldman Sachs -14- International, Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation and Lehman Brothers International (Europe), as representatives of the several underwriters listed in Schedule I thereto (the "International Underwriters" and, together with the U.S. Underwriters, the "Underwriters"). The Underwriting Agreements provide for purchases by the Underwriters from the Company and the Selling Stockholders of 4,287,279 shares of Common Stock, at a purchase price per share of $15.98, and 2,203,506 Warrants, at a purchase price per Warrant of $10.6077684, and up to an additional 691,784 shares of Common Stock and 257,175 Warrants, at the same respective purchase prices, for the purposes of covering over-allotments. The Underwriters exercised the over-allotment options in part, purchasing an additional 639,007 shares of Common Stock and 237,556 Warrants. The Underwriting Agreements contain standard terms and conditions, including representations, warranties and indemnity provisions. Pursuant to the Underwriting Agreements, GS purchased an aggregate of 985,472 shares of Common Stock and 488,318 Warrants and Goldman Sachs International, an English unlimited company, purchased 315,283 shares of Common Stock and 156,229 Warrants (including, in each case, shares of Common Stock and Warrants purchased pursuant to the exercise of the Underwriters' over-allotment options). Pursuant to the Underwriting Agreements and to Lock-Up Agreements (the "Lock-Up Agreements") between certain stockholders of the Company, the Company and the Underwriters, the Limited Partnerships and certain other stockholders of the Company agreed that prior to October 15, 1997, they would not offer, sell, contract to sell, grant any option to sell, transfer or otherwise dispose of, directly or indirectly, shares of Common Stock, securities substantially similar to the Common Stock, or securities exchangeable for or convertible into shares of Common Stock or any substantially similar security without the prior written consent of GS. Also pursuant to the Underwriting Agreements, the Company has agreed that prior to October 15, 1997, it will not offer, sell, contract to sell, grant any option to sell, transfer or otherwise dispose of, directly or indirectly, or file a registration statement relating to, shares of Common Stock, securities substantially similar to the Common Stock, or securities exchangeable for or convertible into shares of Common Stock or any substantially similar security (other than up to 1,300,000 shares of Common Stock that may be issued in connection with acquisitions and other than pursuant to employee stock option plans existing, or upon the conversion or exchange of convertible or exchangeable securities outstanding, on April 17, 1997) without the prior written consent of GS. The foregoing description of the Underwriting Agreements is subject to, and qualified in its entirety by reference to, the Underwriting Agreements, which are filed as exhibits to this Schedule 13D. The foregoing description of the Lock-Up Agreements is subject to, and qualified in its entirety by reference to, the form of Lock-Up Agreement, which is filed as an exhibit to this Schedule 13D. -15- 3. In connection with the IPO, each of the Limited Partnerships entered into a Custody Agreement, dated April 17, 1997 (collectively, the "Custody Agreements"), with The Bank of New York, as Custodian (the "Custodian"), pursuant to which The Bank of New York was given custody of certain shares of Class A Common Stock and Warrants owned by the Limited Partnership and was authorized and instructed to effect certain transfers of and transactions relating to such shares and warrants in order to facilitate the IPO. All such transfers and transactions are completed and the Limited Partnerships expect the prompt release of the 1,753,127.5 shares of Common Stock held by the Custodian pursuant to the Custody Agreements. The foregoing description of the Custody Agreements is subject to, and qualified in its entirety by reference to, the form of Custody Agreement, which is filed as an exhibit to this Schedule 13D. Except as described in this Schedule 13D, none of the Filing Persons or, to the knowledge of the Filing Persons, any of the persons listed on Schedules I, II-A or II-B hereto is a party to any contract, arrangement, understanding or relationship with respect to any securities of the Company. Item 7. Material to be filed as Exhibits. (1) Joint Filing Agreement. (2) Registration Rights Agreement. (3) U.S. Underwriting Agreement. (4) International Underwriting Agreement. (5) Form of Lock-Up Agreement. (6) Form of Custody Agreement. -16- SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Dated: May 23, 1997 GOLDMAN, SACHS & CO. By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: Managing Director THE GOLDMAN SACHS GROUP, L.P. By: The Goldman Sachs Corporation, its general partner By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: Executive Vice President GS ADVISORS, L.P. By: GS Advisors, Inc., its general partner By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: President GS CAPITAL PARTNERS, L.P. By: GS Advisors, L.P., its general partner By: GS Advisors, Inc., its general partner By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: President STONE STREET FUND 1992, L.P. By: Stone Street Performance Corp., its general partner By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: Vice President -17- BRIDGE STREET FUND 1992, L.P. By: Stone Street Performance Corp., its managing general partner By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: Vice President STONE STREET PERFORMANCE CORP. By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: Vice President -18- SCHEDULE I The name of each director and of each member of the executive committee of The Goldman Sachs Corporation and The Goldman, Sachs & Co. L.L.C. and of each member of the executive committee of The Goldman Sachs Group, L.P. and Goldman, Sachs & Co. is set forth below. The business address of each person listed below except John A. Thain and John L. Thornton is 85 Broad Street, New York, NY 10004. The business address of John A. Thain and John L. Thornton is 133 Fleet Street, London EC4A 2BB, England. Each person is a citizen of the United States of America. The present principal occupation or employment of each of the listed persons is as a managing director of Goldman, Sachs & Co. or another Goldman Sachs operating entity and as a member of the executive committee. Jon Z. Corzine Henry M. Paulson, Jr. Roy J. Zuckerberg Robert J. Hurst John A. Thain John L. Thornton -19- SCHEDULE II-A The name, position and present principal occupation of each director and executive officer of GS Advisors, Inc., the sole general partner of GS Advisors, L.P., which is the sole general partner of GS Capital Partners, L.P., are set forth below. The business address for all the executive officers and directors listed below except Henry Cornell is 85 Broad Street, New York, New York 10004. The business address of Henry Cornell is 3 Garden Road, Hong Kong. All executive officers and directors listed below are United States citizens. Name Position Present Principal Occupation - ------------------- ------------------------ ---------------------------- Richard A. Friedman Director/President Managing Director of Goldman, Sachs & Co. Terence M. O'Toole Director/Vice President Managing Director of Goldman, Sachs & Co. Carla H. Skodinski Vice President/Secretary Vice President of Goldman, Sachs & Co. Elizabeth S. Cogan Treasurer Vice President of Goldman, Sachs & Co. Joseph H. Gleberman Director/Vice President Managing Director of Goldman, Sachs & Co. Henry Cornell Vice President Managing Director of Goldman Sachs (Asia) L.L.C. Barry S. Volpert Director/Vice President Managing Director of Goldman, Sachs & Co. Eve M. Gerriets Vice President/ Vice President of Goldman, Assistant Secretary Sachs & Co. David J. Greenwald Assistant Secretary Vice President of Goldman, Sachs & Co. C. Douglas Fuge Assistant Treasurer Vice President of Goldman, Sachs & Co. -20- SCHEDULE II-B The name, position and present principal occupation of each director and executive officer of Stone Street Performance Corp., the sole general partner of Stone Street Fund 1992, L.P. and the sole managing general partner of Bridge Street Fund 1992, L.P., are set forth below. The business address for each of the executive officers and directors listed below is 85 Broad Street, New York, New York 10004. All executive officers and directors listed below are United States citizens. Name Position Present Principal Occupation - ------------------- ------------------------ ---------------------------- Richard A. Friedman Director/Vice President Managing Director of Goldman, Sachs & Co. Avi M. Nash Director/Vice President Managing Director of Goldman, Sachs & Co. Jeffrey B. Goldenberg Director/Vice President Managing Director of Goldman, Sachs & Co. William J. McMahon Director/Vice President Vice President of Goldman, Sachs & Co. Dinakar Singh Director/Vice President Vice President of Goldman, Sachs & Co. Jonathan L. Kolatch Director/Vice President Managing Director of Goldman, Sachs & Co. Sanjeev K. Mehra Director/Vice President Managing Director of Goldman, Sachs & Co. Eric M. Mindich Director/Vice President/ Managing Director of Goldman, Treasurer Sachs & Co. Peter G. Sachs Director/Vice President Limited Partner of The Goldman Sachs Group, L.P. Glenn R. Fuhrman Director/Vice President Vice President of Goldman, Sachs & Co. Peter M. Sacerdote Director/Chairman/C.E.O./ Limited Partner of The President Goldman Sachs Group, L.P. David J. Greenwald Vice President Vice President of Goldman, Sachs & Co. Carla H. Skodinski Vice President/Secretary Vice President of Goldman, Sachs & Co. Esta E. Stecher Vice President Managing Director of Goldman, Sachs & Co. Richard A. Yacenda Vice President Vice President of Goldman, Sachs & Co. -21- SCHEDULE III In settlement of Securities and Exchange Commission Administrative Proceeding File No. 3-7646 In the Matter of the Distribution of Securities Issued by Certain Government Sponsored Enterprises, Goldman, Sachs & Co. (the "Firm"), along with numerous other securities firms, without admitting or denying any of the findings of the Securities and Exchange Commission (the "SEC") consented to the entry of an Order, dated January 16, 1992. The SEC found that the Firm, in connection with its participation in the primary distributions of certain unsecured debt securities issued by Government Sponsored Enterprises ("GSEs"), made and kept certain records that did not accurately reflect the Firm's customers' orders for GSEs' securities and/or offers, purchases or sales by the Firm of the GSEs' securities effected by the Firm in violation of Section 17(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and 17 C.F.R. Sections 240.17a-3 and 240.17a-4. The Firm was ordered to cease and desist from committing or causing future violations of the aforementioned sections of the Exchange Act in connection with any primary distributions of unsecured debt securities issued by the GSEs, pay a civil money penalty to the United States Treasury in the amount of $100,000 and maintain policies and procedures reasonably designed to ensure the Firm's future compliance with the aforementioned sections of the Exchange Act in connection with any primary distributions of unsecured debt securities issued by the GSEs. In Securities and Exchange Commission Administrative Proceeding File No. 3-8282 In the Matter of Goldman, Sachs & Co., the Firm, without admitting or denying any of the SEC's allegations, settled administrative proceedings involving alleged books and records and supervisory violations relating to eleven trades of U.S. Treasury securities in the secondary markets in 1985 and 1986. The SEC alleged that the Firm had failed to maintain certain records required pursuant to Section 17(a) of the Exchange Act and had also failed to supervise activities relating to the aforementioned trades in violation of Section 15(b)(4)(E) of the Exchange Act. The Firm was ordered to cease and desist from committing or causing any violation of the aforementioned sections of the Exchange Act, pay a civil money penalty to the SEC in the amount of $250,000 and establish policies and procedures reasonably designed to assure compliance with Section 17(a) of the Exchange Act and Rules 17a-3 and 17a-4 thereunder. -22- SCHEDULE IV Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0418-800316-12 2,000 17 17-Apr-97 23-Apr-97 0424-001372-12 2,000 17.875 24-Apr-97 29-Apr-97 0418-800021-12 1,000 17 17-Apr-97 23-Apr-97 0501-001117-12 1,000 18.25 1-May-97 6-May-97 0423-800005-12 250 17 17-Apr-97 23-Apr-97 0418-800056-12 1,000 17 17-Apr-97 23-Apr-97 0418-800057-12 2,000 17 17-Apr-97 23-Apr-97 0418-800025-12 1,000 17 17-Apr-97 23-Apr-97 0501-001115-12 1,000 18.25 1-May-97 6-May-97 0421-800006-12 2,000 17 17-Apr-97 23-Apr-97 0421-800042-12 12,000 17 17-Apr-97 23-Apr-97 0421-800043-12 8,000 17 17-Apr-97 23-Apr-97 0421-800120-12 3,000 17 17-Apr-97 23-Apr-97 0513-143286-12 3,000 19.5 13-May-97 16-May-97 0423-800001-12 3,000 17 17-Apr-97 23-Apr-97 0513-143285-12 3,000 19.375 13-May-97 16-May-97 0421-800117-12 7,500 17 17-Apr-97 23-Apr-97 0425-143130-12 2,900 18.125 25-Apr-97 30-Apr-97 0501-143100-12 4,600 18.25 1-May-97 6-May-97 0418-800187-12 1,000 17 17-Apr-97 23-Apr-97 0430-206173-12 1,000 18.125 30-Apr-97 5-May-97 0418-800231-12 2,800 17 17-Apr-97 23-Apr-97 0421-999753-12 1,800 17 17-Apr-97 23-Apr-97 0418-800228-12 1,400 17 17-Apr-97 23-Apr-97 0418-800230-12 3,600 17 17-Apr-97 23-Apr-97 0418-800232-12 3,900 17 17-Apr-97 23-Apr-97 0418-800229-12 1,500 17 17-Apr-97 23-Apr-97 0418-800235-12 1,900 17 17-Apr-97 23-Apr-97 0418-800237-12 700 17 17-Apr-97 23-Apr-97 0418-800227-12 1,100 17 17-Apr-97 23-Apr-97 0421-800053-12 1,000 17 17-Apr-97 23-Apr-97 0418-800308-12 1,000 17 17-Apr-97 23-Apr-97 0418-800236-12 1,500 17 17-Apr-97 23-Apr-97 0421-800013-12 1,000 17 17-Apr-97 23-Apr-97 0418-274310-12 2,000 17.125 18-Apr-97 23-Apr-97 0430-999554-12 3,000 17.75 29-Apr-97 2-May-97 0423-800008-12 2,000 17 17-Apr-97 23-Apr-97 0424-274272-12 2,000 17.904 24-Apr-97 29-Apr-97 0422-800047-12 4,000 17 17-Apr-97 23-Apr-97 0509-274033-12 4,000 18.625 9-May-97 14-May-97 0425-800026-12 7,000 17 17-Apr-97 23-Apr-97 -23- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0513-274211-12 7,000 19.625 13-May-97 16-May-97 0428-999521-12 2,500 17 17-Apr-97 23-Apr-97 0513-274212-12 2,500 19.625 13-May-97 16-May-97 0428-999520-12 3,000 17 17-Apr-97 23-Apr-97 0430-274159-12 3,000 17.625 30-Apr-97 5-May-97 0423-800010-12 1,000 17 17-Apr-97 23-Apr-97 0423-800013-12 1,000 17 17-Apr-97 23-Apr-97 0425-800024-12 2,500 17 17-Apr-97 23-Apr-97 0513-274213-12 2,500 19.625 13-May-97 16-May-97 0421-800084-12 1,000 17 17-Apr-97 23-Apr-97 0418-800207-12 6,500 17 17-Apr-97 23-Apr-97 0423-286018-12 6,500 17.375 23-Apr-97 28-Apr-97 0418-800209-12 1,500 17 17-Apr-97 23-Apr-97 0501-286046-12 1,500 18.375 1-May-97 6-May-97 0418-800049-12 2,000 17 17-Apr-97 23-Apr-97 0418-800046-12 2,000 17 17-Apr-97 23-Apr-97 0418-800045-12 2,000 17 17-Apr-97 23-Apr-97 0418-800183-12 1,000 17 17-Apr-97 23-Apr-97 0430-304062-12 1,000 17.625 30-Apr-97 5-May-97 0418-800042-12 2,000 17 17-Apr-97 23-Apr-97 0418-800041-12 2,000 17 17-Apr-97 23-Apr-97 0418-800226-12 1,000 17 17-Apr-97 23-Apr-97 0513-304225-12 3,000 19.625 13-May-97 16-May-97* 0418-800162-12 1,500 17 17-Apr-97 23-Apr-97 0430-304077-12 1,500 18 30-Apr-97 5-May-97 0418-800181-12 2,000 17 17-Apr-97 23-Apr-97 0430-304121-12 2,000 18 30-Apr-97 5-May-97 0418-800156-12 500 17 17-Apr-97 23-Apr-97 0430-304079-12 500 18 30-Apr-97 5-May-97 0418-800159-12 1,000 17 17-Apr-97 23-Apr-97 0430-304080-12 1,000 18 30-Apr-97 5-May-97 0418-333555-12 2,000 17 17-Apr-97 23-Apr-97 0418-333539-12 2,000 17 17-Apr-97 23-Apr-97 5425-323236-12 2,000 18 25-Apr-97 30-Apr-97 0418-333554-12 5,000 17 17-Apr-97 23-Apr-97 7430-333991-12 159,340 16.4 17-Apr-97 23-Apr-97 0421-800012-13 119 17 17-Apr-97 23-Apr-97 0418-800059-13 200 17 17-Apr-97 23-Apr-97 0424-800003-13 200 17 17-Apr-97 23-Apr-97 0418-800167-13 250 17 17-Apr-97 23-Apr-97 0423-800005-13 250 17 17-Apr-97 23-Apr-97 - -------------- * This transaction was effected on the New York Stock Exchange. -24- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0418-800249-13 380 17 17-Apr-97 23-Apr-97 0418-800250-13 450 17 17-Apr-97 23-Apr-97 0418-800246-13 490 17 17-Apr-97 23-Apr-97 0418-800022-13 500 17 17-Apr-97 23-Apr-97 0418-800051-13 500 17 17-Apr-97 23-Apr-97 0418-800156-13 500 17 17-Apr-97 23-Apr-97 0418-800158-13 500 17 17-Apr-97 23-Apr-97 0418-800173-13 500 17 17-Apr-97 23-Apr-97 0418-800174-13 500 17 17-Apr-97 23-Apr-97 0418-800255-13 500 17 17-Apr-97 23-Apr-97 0418-800256-13 500 17 17-Apr-97 23-Apr-97 0418-800296-13 500 17 17-Apr-97 23-Apr-97 0421-800007-13 500 17 17-Apr-97 23-Apr-97 0421-800068-13 500 17 17-Apr-97 23-Apr-97 0418-800245-13 540 17 17-Apr-97 23-Apr-97 0418-800285-13 600 17 17-Apr-97 23-Apr-97 0421-800040-13 600 17 17-Apr-97 23-Apr-97 0418-800247-13 620 17 17-Apr-97 23-Apr-97 0418-800248-13 620 17 17-Apr-97 23-Apr-97 0418-800086-13 700 17 17-Apr-97 23-Apr-97 0418-800237-13 700 17 17-Apr-97 23-Apr-97 0418-800266-13 700 17 17-Apr-97 23-Apr-97 0422-800013-13 750 17 17-Apr-97 23-Apr-97 0422-800016-13 750 17 17-Apr-97 23-Apr-97 0418-800058-13 800 17 17-Apr-97 23-Apr-97 0418-800079-13 800 17 17-Apr-97 23-Apr-97 0418-800089-13 800 17 17-Apr-97 23-Apr-97 0418-800297-13 890 17 17-Apr-97 23-Apr-97 0418-800085-13 900 17 17-Apr-97 23-Apr-97 0418-800291-13 910 17 17-Apr-97 23-Apr-97 0418-800018-13 1,000 17 17-Apr-97 23-Apr-97 0418-800021-13 1,000 17 17-Apr-97 23-Apr-97 0418-800024-13 1,000 17 17-Apr-97 23-Apr-97 0418-800025-13 1,000 17 17-Apr-97 23-Apr-97 0418-800052-13 1,000 17 17-Apr-97 23-Apr-97 0418-800053-13 1,000 17 17-Apr-97 23-Apr-97 0418-800054-13 1,000 17 17-Apr-97 23-Apr-97 0418-800056-13 1,000 17 17-Apr-97 23-Apr-97 0418-800105-13 1,000 17 17-Apr-97 23-Apr-97 0418-800126-13 1,000 17 17-Apr-97 23-Apr-97 0418-800127-13 1,000 17 17-Apr-97 23-Apr-97 -25- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0418-800134-13 1,000 17 17-Apr-97 23-Apr-97 0418-800136-13 1,000 17 17-Apr-97 23-Apr-97 0418-800138-13 1,000 17 17-Apr-97 23-Apr-97 0418-800143-13 1,000 17 17-Apr-97 23-Apr-97 0418-800144-13 1,000 17 17-Apr-97 23-Apr-97 0418-800145-13 1,000 17 17-Apr-97 23-Apr-97 0418-800146-13 1,000 17 17-Apr-97 23-Apr-97 0418-800147-13 1,000 17 17-Apr-97 23-Apr-97 0418-800148-13 1,000 17 17-Apr-97 23-Apr-97 0418-800157-13 1,000 17 17-Apr-97 23-Apr-97 0418-800159-13 1,000 17 17-Apr-97 23-Apr-97 0418-800170-13 1,000 17 17-Apr-97 23-Apr-97 0418-800171-13 1,000 17 17-Apr-97 23-Apr-97 0418-800172-13 1,000 17 17-Apr-97 23-Apr-97 0418-800183-13 1,000 17 17-Apr-97 23-Apr-97 0418-800186-13 1,000 17 17-Apr-97 23-Apr-97 0418-800187-13 1,000 17 17-Apr-97 23-Apr-97 0418-800188-13 1,000 17 17-Apr-97 23-Apr-97 0418-800189-13 1,000 17 17-Apr-97 23-Apr-97 0418-800190-13 1,000 17 17-Apr-97 23-Apr-97 0418-800216-13 1,000 17 17-Apr-97 23-Apr-97 0418-800217-13 1,000 17 17-Apr-97 23-Apr-97 0418-800226-13 1,000 17 17-Apr-97 23-Apr-97 0418-800254-13 1,000 17 17-Apr-97 23-Apr-97 0418-800257-13 1,000 17 17-Apr-97 23-Apr-97 0418-800258-13 1,000 17 17-Apr-97 23-Apr-97 0418-800268-13 1,000 17 17-Apr-97 23-Apr-97 0418-800307-13 1,000 17 17-Apr-97 23-Apr-97 0418-800308-13 1,000 17 17-Apr-97 23-Apr-97 0418-800319-13 1,000 17 17-Apr-97 23-Apr-97 0418-800320-13 1,000 17 17-Apr-97 23-Apr-97 0418-800321-13 1,000 17 17-Apr-97 23-Apr-97 0421-800001-13 1,000 17 17-Apr-97 23-Apr-97 0421-800008-13 1,000 17 17-Apr-97 23-Apr-97 0421-800013-13 1,000 17 17-Apr-97 23-Apr-97 0421-800037-13 1,000 17 17-Apr-97 23-Apr-97 0421-800038-13 1,000 17 17-Apr-97 23-Apr-97 0421-800053-13 1,000 17 17-Apr-97 23-Apr-97 0421-800056-13 1,000 17 17-Apr-97 23-Apr-97 0421-800057-13 1,000 17 17-Apr-97 23-Apr-97 0421-800061-13 1,000 17 17-Apr-97 23-Apr-97 -26- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0421-800083-13 1,000 17 17-Apr-97 23-Apr-97 0421-800084-13 1,000 17 17-Apr-97 23-Apr-97 0421-800085-13 1,000 17 17-Apr-97 23-Apr-97 0421-800086-13 1,000 17 17-Apr-97 23-Apr-97 0421-800087-13 1,000 17 17-Apr-97 23-Apr-97 0422-800011-13 1,000 17 17-Apr-97 23-Apr-97 0422-800012-13 1,000 17 17-Apr-97 23-Apr-97 0422-800014-13 1,000 17 17-Apr-97 23-Apr-97 0422-800015-13 1,000 17 17-Apr-97 23-Apr-97 0422-800018-13 1,000 17 17-Apr-97 23-Apr-97 0422-800019-13 1,000 17 17-Apr-97 23-Apr-97 0422-800045-13 1,000 17 17-Apr-97 23-Apr-97 0422-800051-13 1,000 17 17-Apr-97 23-Apr-97 0422-800056-13 1,000 17 17-Apr-97 23-Apr-97 0422-800059-13 1,000 17 17-Apr-97 23-Apr-97 0422-800068-13 1,000 17 17-Apr-97 23-Apr-97 0423-800010-13 1,000 17 17-Apr-97 23-Apr-97 0423-800011-13 1,000 17 17-Apr-97 23-Apr-97 0423-800012-13 1,000 17 17-Apr-97 23-Apr-97 0423-800013-13 1,000 17 17-Apr-97 23-Apr-97 0418-800227-13 1,100 17 17-Apr-97 23-Apr-97 0418-800087-13 1,200 17 17-Apr-97 23-Apr-97 0418-800286-13 1,200 17 17-Apr-97 23-Apr-97 0421-800041-13 1,200 17 17-Apr-97 23-Apr-97 0421-800099-13 1,300 17 17-Apr-97 23-Apr-97 0418-800228-13 1,400 17 17-Apr-97 23-Apr-97 0418-800299-13 1,400 17 17-Apr-97 23-Apr-97 0418-800023-13 1,500 17 17-Apr-97 23-Apr-97 0418-800160-13 1,500 17 17-Apr-97 23-Apr-97 0418-800161-13 1,500 17 17-Apr-97 23-Apr-97 0418-800162-13 1,500 17 17-Apr-97 23-Apr-97 0418-800163-13 1,500 17 17-Apr-97 23-Apr-97 0418-800166-13 1,500 17 17-Apr-97 23-Apr-97 0418-800194-13 1,500 17 17-Apr-97 23-Apr-97 0418-800195-13 1,500 17 17-Apr-97 23-Apr-97 0418-800197-13 1,500 17 17-Apr-97 23-Apr-97 0418-800200-13 1,500 17 17-Apr-97 23-Apr-97 0418-800203-13 1,500 17 17-Apr-97 23-Apr-97 0418-800205-13 1,500 17 17-Apr-97 23-Apr-97 0418-800209-13 1,500 17 17-Apr-97 23-Apr-97 0418-800210-13 1,500 17 17-Apr-97 23-Apr-97 -27- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0418-800214-13 1,500 17 17-Apr-97 23-Apr-97 0418-800220-13 1,500 17 17-Apr-97 23-Apr-97 0418-800229-13 1,500 17 17-Apr-97 23-Apr-97 0418-800236-13 1,500 17 17-Apr-97 23-Apr-97 0418-800252-13 1,500 17 17-Apr-97 23-Apr-97 0418-800253-13 1,500 17 17-Apr-97 23-Apr-97 0418-800294-13 1,500 17 17-Apr-97 23-Apr-97 0421-800066-13 1,500 17 17-Apr-97 23-Apr-97 0421-800126-13 1,500 17 17-Apr-97 23-Apr-97 0421-800127-13 1,500 17 17-Apr-97 23-Apr-97 0422-800060-13 1,500 17 17-Apr-97 23-Apr-97 0422-800061-13 1,500 17 17-Apr-97 23-Apr-97 0422-800069-13 1,500 17 17-Apr-97 23-Apr-97 0418-800090-13 1,800 17 17-Apr-97 23-Apr-97 0418-800234-13 1,800 17 17-Apr-97 23-Apr-97 0418-800244-13 1,800 17 17-Apr-97 23-Apr-97 0418-800235-13 1,900 17 17-Apr-97 23-Apr-97 0418-800273-13 1,900 17 17-Apr-97 23-Apr-97 0418-800284-13 1,900 17 17-Apr-97 23-Apr-97 0418-800300-13 1,900 17 17-Apr-97 23-Apr-97 0418-800004-13 2,000 17 17-Apr-97 23-Apr-97 0418-800041-13 2,000 17 17-Apr-97 23-Apr-97 0418-800042-13 2,000 17 17-Apr-97 23-Apr-97 0418-800043-13 2,000 17 17-Apr-97 23-Apr-97 0418-800044-13 2,000 17 17-Apr-97 23-Apr-97 0418-800045-13 2,000 17 17-Apr-97 23-Apr-97 0418-800046-13 2,000 17 17-Apr-97 23-Apr-97 0418-800047-13 2,000 17 17-Apr-97 23-Apr-97 0418-800048-13 2,000 17 17-Apr-97 23-Apr-97 0418-800049-13 2,000 17 17-Apr-97 23-Apr-97 0418-800050-13 2,000 17 17-Apr-97 23-Apr-97 0418-800055-13 2,000 17 17-Apr-97 23-Apr-97 0418-800057-13 2,000 17 17-Apr-97 23-Apr-97 0418-800060-13 2,000 17 17-Apr-97 23-Apr-97 0418-800104-13 2,000 17 17-Apr-97 23-Apr-97 0418-800106-13 2,000 17 17-Apr-97 23-Apr-97 0418-800121-13 2,000 17 17-Apr-97 23-Apr-97 0418-800122-13 2,000 17 17-Apr-97 23-Apr-97 0418-800135-13 2,000 17 17-Apr-97 23-Apr-97 0418-800137-13 2,000 17 17-Apr-97 23-Apr-97 0418-800139-13 2,000 17 17-Apr-97 23-Apr-97 -28- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0418-800140-13 2,000 17 17-Apr-97 23-Apr-97 0418-800141-13 2,000 17 17-Apr-97 23-Apr-97 0418-800142-13 2,000 17 17-Apr-97 23-Apr-97 0418-800150-13 2,000 17 17-Apr-97 23-Apr-97 0418-800155-13 2,000 17 17-Apr-97 23-Apr-97 0418-800164-13 2,000 17 17-Apr-97 23-Apr-97 0418-800165-13 2,000 17 17-Apr-97 23-Apr-97 0418-800181-13 2,000 17 17-Apr-97 23-Apr-97 0418-800182-13 2,000 17 17-Apr-97 23-Apr-97 0418-800184-13 2,000 17 17-Apr-97 23-Apr-97 0418-800185-13 2,000 17 17-Apr-97 23-Apr-97 0418-800193-13 2,000 17 17-Apr-97 23-Apr-97 0418-800198-13 2,000 17 17-Apr-97 23-Apr-97 0418-800199-13 2,000 17 17-Apr-97 23-Apr-97 0418-800204-13 2,000 17 17-Apr-97 23-Apr-97 0418-800208-13 2,000 17 17-Apr-97 23-Apr-97 0418-800215-13 2,000 17 17-Apr-97 23-Apr-97 0418-800218-13 2,000 17 17-Apr-97 23-Apr-97 0418-800259-13 2,000 17 17-Apr-97 23-Apr-97 0418-800260-13 2,000 17 17-Apr-97 23-Apr-97 0418-800261-13 2,000 17 17-Apr-97 23-Apr-97 0418-800262-13 2,000 17 17-Apr-97 23-Apr-97 0418-800292-13 2,000 17 17-Apr-97 23-Apr-97 0418-800295-13 2,000 17 17-Apr-97 23-Apr-97 0418-800311-13 2,000 17 17-Apr-97 23-Apr-97 0418-800316-13 2,000 17 17-Apr-97 23-Apr-97 0418-800318-13 2,000 17 17-Apr-97 23-Apr-97 0421-800006-13 2,000 17 17-Apr-97 23-Apr-97 0421-800016-13 2,000 17 17-Apr-97 23-Apr-97 0421-800067-13 2,000 17 17-Apr-97 23-Apr-97 0421-800069-13 2,000 17 17-Apr-97 23-Apr-97 0421-800070-13 2,000 17 17-Apr-97 23-Apr-97 0421-800071-13 2,000 17 17-Apr-97 23-Apr-97 0421-800113-13 2,000 17 17-Apr-97 23-Apr-97 0421-800125-13 2,000 17 17-Apr-97 23-Apr-97 0422-800005-13 2,000 17 17-Apr-97 23-Apr-97 0422-800050-13 2,000 17 17-Apr-97 23-Apr-97 0422-800053-13 2,000 17 17-Apr-97 23-Apr-97 0422-800055-13 2,000 17 17-Apr-97 23-Apr-97 0422-800058-13 2,000 17 17-Apr-97 23-Apr-97 0422-800062-13 2,000 17 17-Apr-97 23-Apr-97 -29- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0422-800064-13 2,000 17 17-Apr-97 23-Apr-97 0422-800066-13 2,000 17 17-Apr-97 23-Apr-97 0423-800008-13 2,000 17 17-Apr-97 23-Apr-97 0418-800081-13 2,100 17 17-Apr-97 23-Apr-97 0418-800082-13 2,100 17 17-Apr-97 23-Apr-97 0418-800287-13 2,100 17 17-Apr-97 23-Apr-97 0418-800298-13 2,100 17 17-Apr-97 23-Apr-97 0418-800091-13 2,200 17 17-Apr-97 23-Apr-97 0418-800092-13 2,200 17 17-Apr-97 23-Apr-97 0418-800243-13 2,200 17 17-Apr-97 23-Apr-97 0418-800290-13 2,200 17 17-Apr-97 23-Apr-97 0421-800011-13 2,381 17 17-Apr-97 23-Apr-97 0418-800270-13 2,400 17 17-Apr-97 23-Apr-97 0421-800104-13 2,400 17 17-Apr-97 23-Apr-97 0418-800001-13 2,500 17 17-Apr-97 23-Apr-97 0418-800002-13 2,500 17 17-Apr-97 23-Apr-97 0418-800065-13 2,500 17 17-Apr-97 23-Apr-97 0418-800179-13 2,500 17 17-Apr-97 23-Apr-97 0418-800180-13 2,500 17 17-Apr-97 23-Apr-97 0418-800206-13 2,500 17 17-Apr-97 23-Apr-97 0418-800278-13 2,500 17 17-Apr-97 23-Apr-97 0418-800281-13 2,500 17 17-Apr-97 23-Apr-97 0421-800002-13 2,500 17 17-Apr-97 23-Apr-97 0421-800064-13 2,500 17 17-Apr-97 23-Apr-97 0421-800118-13 2,500 17 17-Apr-97 23-Apr-97 0422-800017-13 2,500 17 17-Apr-97 23-Apr-97 0422-800054-13 2,500 17 17-Apr-97 23-Apr-97 0425-800024-13 2,500 17 17-Apr-97 23-Apr-97 0428-999521-13 2,500 17 17-Apr-97 23-Apr-97 0418-800289-13 2,600 17 17-Apr-97 23-Apr-97 0421-800114-13 2,600 17 17-Apr-97 23-Apr-97 0418-800037-13 2,700 17 17-Apr-97 23-Apr-97 0418-800231-13 2,800 17 17-Apr-97 23-Apr-97 0418-800240-13 2,900 17 17-Apr-97 23-Apr-97 0418-800280-13 2,900 17 17-Apr-97 23-Apr-97 0418-800088-13 3,000 17 17-Apr-97 23-Apr-97 0418-800120-13 3,000 17 17-Apr-97 23-Apr-97 0418-800129-13 3,000 17 17-Apr-97 23-Apr-97 0418-800196-13 3,000 17 17-Apr-97 23-Apr-97 0418-800219-13 3,000 17 17-Apr-97 23-Apr-97 0418-800221-13 3,000 17 17-Apr-97 23-Apr-97 -30- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0418-800223-13 3,000 17 17-Apr-97 23-Apr-97 0418-800224-13 3,000 17 17-Apr-97 23-Apr-97 0418-800225-13 3,000 17 17-Apr-97 23-Apr-97 0418-800251-13 3,000 17 17-Apr-97 23-Apr-97 0418-800263-13 3,000 17 17-Apr-97 23-Apr-97 0418-800313-13 3,000 17 17-Apr-97 23-Apr-97 0418-800315-13 3,000 17 17-Apr-97 23-Apr-97 0421-800058-13 3,000 17 17-Apr-97 23-Apr-97 0421-800120-13 3,000 17 17-Apr-97 23-Apr-97 0421-800128-13 3,000 17 17-Apr-97 23-Apr-97 0421-999168-13 3,000 17 17-Apr-97 23-Apr-97 0421-999169-13 3,000 17 17-Apr-97 23-Apr-97 0421-999170-13 3,000 17 17-Apr-97 23-Apr-97 0421-999171-13 3,000 17 17-Apr-97 23-Apr-97 0421-999172-13 3,000 17 17-Apr-97 23-Apr-97 0422-800049-13 3,000 17 17-Apr-97 23-Apr-97 0422-800052-13 3,000 17 17-Apr-97 23-Apr-97 0422-800057-13 3,000 17 17-Apr-97 23-Apr-97 0422-800063-13 3,000 17 17-Apr-97 23-Apr-97 0422-800065-13 3,000 17 17-Apr-97 23-Apr-97 0422-800067-13 3,000 17 17-Apr-97 23-Apr-97 0423-800001-13 3,000 17 17-Apr-97 23-Apr-97 0428-999520-13 3,000 17 17-Apr-97 23-Apr-97 0418-800304-13 3,200 17 17-Apr-97 23-Apr-97 0418-800035-13 3,400 17 17-Apr-97 23-Apr-97 0418-800098-13 3,400 17 17-Apr-97 23-Apr-97 0418-800267-13 3,400 17 17-Apr-97 23-Apr-97 0418-800269-13 3,400 17 17-Apr-97 23-Apr-97 0418-800202-13 3,500 17 17-Apr-97 23-Apr-97 0418-800230-13 3,600 17 17-Apr-97 23-Apr-97 0418-800083-13 3,800 17 17-Apr-97 23-Apr-97 0418-800084-13 3,900 17 17-Apr-97 23-Apr-97 0418-800232-13 3,900 17 17-Apr-97 23-Apr-97 0418-800288-13 3,900 17 17-Apr-97 23-Apr-97 0418-800303-13 3,900 17 17-Apr-97 23-Apr-97 0421-800106-13 3,900 17 17-Apr-97 23-Apr-97 0421-800107-13 3,900 17 17-Apr-97 23-Apr-97 0418-800077-13 4,000 17 17-Apr-97 23-Apr-97 0418-800078-13 4,000 17 17-Apr-97 23-Apr-97 0418-800149-13 4,000 17 17-Apr-97 23-Apr-97 0418-800191-13 4,000 17 17-Apr-97 23-Apr-97 -31- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0418-800201-13 4,000 17 17-Apr-97 23-Apr-97 0421-800033-13 4,000 17 17-Apr-97 23-Apr-97 0421-800052-13 4,000 17 17-Apr-97 23-Apr-97 0421-800123-13 4,000 17 17-Apr-97 23-Apr-97 0421-800124-13 4,000 17 17-Apr-97 23-Apr-97 0422-800047-13 4,000 17 17-Apr-97 23-Apr-97 0418-800117-13 4,100 17 17-Apr-97 23-Apr-97 0424-800001-13 4,100 17 17-Apr-97 23-Apr-97 0418-800264-13 4,300 17 17-Apr-97 23-Apr-97 0418-800275-13 4,500 17 17-Apr-97 23-Apr-97 0418-800233-13 4,800 17 17-Apr-97 23-Apr-97 0418-800064-13 5,000 17 17-Apr-97 23-Apr-97 0418-800118-13 5,000 17 17-Apr-97 23-Apr-97 0418-800175-13 5,000 17 17-Apr-97 23-Apr-97 0418-800176-13 5,000 17 17-Apr-97 23-Apr-97 0418-800177-13 5,000 17 17-Apr-97 23-Apr-97 0421-800044-13 5,000 17 17-Apr-97 23-Apr-97 0421-800045-13 5,000 17 17-Apr-97 23-Apr-97 0421-800059-13 5,000 17 17-Apr-97 23-Apr-97 0421-800060-13 5,000 17 17-Apr-97 23-Apr-97 0421-800079-13 5,000 17 17-Apr-97 23-Apr-97 0421-800080-13 5,000 17 17-Apr-97 23-Apr-97 0421-800081-13 5,000 17 17-Apr-97 23-Apr-97 0421-800122-13 5,000 17 17-Apr-97 23-Apr-97 0422-800046-13 5,000 17 17-Apr-97 23-Apr-97 0421-800100-13 5,100 17 17-Apr-97 23-Apr-97 0418-800097-13 5,400 17 17-Apr-97 23-Apr-97 0418-800241-13 5,400 17 17-Apr-97 23-Apr-97 0421-800108-13 5,600 17 17-Apr-97 23-Apr-97 0418-800242-13 5,700 17 17-Apr-97 23-Apr-97 0421-800112-13 5,700 17 17-Apr-97 23-Apr-97 0421-800115-13 5,800 17 17-Apr-97 23-Apr-97 0418-800301-13 5,900 17 17-Apr-97 23-Apr-97 0418-800116-13 6,000 17 17-Apr-97 23-Apr-97 0418-800192-13 6,000 17 17-Apr-97 23-Apr-97 0418-800222-13 6,000 17 17-Apr-97 23-Apr-97 0421-800119-13 6,000 17 17-Apr-97 23-Apr-97 0418-800062-13 6,500 17 17-Apr-97 23-Apr-97 0418-800207-13 6,500 17 17-Apr-97 23-Apr-97 0418-800271-13 6,900 17 17-Apr-97 23-Apr-97 0418-800113-13 7,000 17 17-Apr-97 23-Apr-97 -32- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0418-800123-13 7,000 17 17-Apr-97 23-Apr-97 0421-800035-13 7,000 17 17-Apr-97 23-Apr-97 0425-800026-13 7,000 17 17-Apr-97 23-Apr-97 0421-800010-13 7,400 17 17-Apr-97 23-Apr-97 0418-800069-13 7,500 17 17-Apr-97 23-Apr-97 0421-800117-13 7,500 17 17-Apr-97 23-Apr-97 0418-800169-13 8,000 17 17-Apr-97 23-Apr-97 0418-800302-13 8,000 17 17-Apr-97 23-Apr-97 0421-800043-13 8,000 17 17-Apr-97 23-Apr-97 0429-800258-13 8,000 17 17-Apr-97 23-Apr-97 0421-800102-13 8,400 17 17-Apr-97 23-Apr-97 0418-800282-13 8,500 17 17-Apr-97 23-Apr-97 0418-800080-13 9,000 17 17-Apr-97 23-Apr-97 0418-800038-13 9,300 17 17-Apr-97 23-Apr-97 0418-800028-13 10,000 17 17-Apr-97 23-Apr-97 0418-800168-13 10,000 17 17-Apr-97 23-Apr-97 0418-800178-13 10,000 17 17-Apr-97 23-Apr-97 0418-800293-13 10,000 17 17-Apr-97 23-Apr-97 0418-800265-13 10,200 17 17-Apr-97 23-Apr-97 0418-800108-13 11,300 17 17-Apr-97 23-Apr-97 0418-800112-13 11,500 17 17-Apr-97 23-Apr-97 0418-800115-13 11,800 17 17-Apr-97 23-Apr-97 0418-800239-13 12,000 17 17-Apr-97 23-Apr-97 0421-800036-13 12,000 17 17-Apr-97 23-Apr-97 0421-800042-13 12,000 17 17-Apr-97 23-Apr-97 0418-800238-13 12,800 17 17-Apr-97 23-Apr-97 0421-800032-13 13,000 17 17-Apr-97 23-Apr-97 0421-800029-13 13,100 17 17-Apr-97 23-Apr-97 0421-800116-13 13,400 17 17-Apr-97 23-Apr-97 0418-800063-13 13,500 17 17-Apr-97 23-Apr-97 0418-800071-13 13,500 17 17-Apr-97 23-Apr-97 0418-800074-13 13,500 17 17-Apr-97 23-Apr-97 0418-800068-13 14,000 17 17-Apr-97 23-Apr-97 0421-800023-13 14,700 17 17-Apr-97 23-Apr-97 0418-800067-13 15,000 17 17-Apr-97 23-Apr-97 0418-800103-13 15,000 17 17-Apr-97 23-Apr-97 0422-800002-13 15,000 17 17-Apr-97 23-Apr-97 0418-800272-13 15,700 17 17-Apr-97 23-Apr-97 0421-800103-13 16,200 17 17-Apr-97 23-Apr-97 0418-800283-13 16,300 17 17-Apr-97 23-Apr-97 0421-800009-13 17,600 17 17-Apr-97 23-Apr-97 -33- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0421-800024-13 17,600 17 17-Apr-97 23-Apr-97 0418-800107-13 18,000 17 17-Apr-97 23-Apr-97 0421-800004-13 20,000 17 17-Apr-97 23-Apr-97 0421-800034-13 20,000 17 17-Apr-97 23-Apr-97 0421-800078-13 20,000 17 17-Apr-97 23-Apr-97 0421-800105-13 20,300 17 17-Apr-97 23-Apr-97 0418-800306-13 20,500 17 17-Apr-97 23-Apr-97 0418-800076-13 22,200 17 17-Apr-97 23-Apr-97 0421-800028-13 24,000 17 17-Apr-97 23-Apr-97 0418-800309-13 25,000 17 17-Apr-97 23-Apr-97 0418-800073-13 26,500 17 17-Apr-97 23-Apr-97 0418-800110-13 30,000 17 17-Apr-97 23-Apr-97 0421-800063-13 30,000 17 17-Apr-97 23-Apr-97 0421-800065-13 30,000 17 17-Apr-97 23-Apr-97 0421-800021-13 30,300 17 17-Apr-97 23-Apr-97 0418-800072-13 30,500 17 17-Apr-97 23-Apr-97 0421-800109-13 30,500 17 17-Apr-97 23-Apr-97 0418-800111-13 32,000 17 17-Apr-97 23-Apr-97 0418-800033-13 33,100 17 17-Apr-97 23-Apr-97 0421-800101-13 33,700 17 17-Apr-97 23-Apr-97 0421-800026-13 34,000 17 17-Apr-97 23-Apr-97 0421-800025-13 34,900 17 17-Apr-97 23-Apr-97 0418-800066-13 35,500 17 17-Apr-97 23-Apr-97 0418-800036-13 36,600 17 17-Apr-97 23-Apr-97 0418-800274-13 39,500 17 17-Apr-97 23-Apr-97 0418-800100-13 40,000 17 17-Apr-97 23-Apr-97 0421-800019-13 40,000 17 17-Apr-97 23-Apr-97 0418-800114-13 46,700 17 17-Apr-97 23-Apr-97 0418-800277-13 49,100 17 17-Apr-97 23-Apr-97 0418-800061-13 50,000 17 17-Apr-97 23-Apr-97 0421-800062-13 50,000 17 17-Apr-97 23-Apr-97 0418-800279-13 51,100 17 17-Apr-97 23-Apr-97 0421-800030-13 51,800 17 17-Apr-97 23-Apr-97 0421-800022-13 53,300 17 17-Apr-97 23-Apr-97 0421-800111-13 65,000 17 17-Apr-97 23-Apr-97 0418-800070-13 66,500 17 17-Apr-97 23-Apr-97 0418-800034-13 66,900 17 17-Apr-97 23-Apr-97 0418-800099-13 71,200 17 17-Apr-97 23-Apr-97 0418-800109-13 71,600 17 17-Apr-97 23-Apr-97 0418-800040-13 72,100 17 17-Apr-97 23-Apr-97 0418-800276-13 74,000 17 17-Apr-97 23-Apr-97 -34- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0421-800020-13 76,800 17 17-Apr-97 23-Apr-97 0421-800027-13 80,300 17 17-Apr-97 23-Apr-97 0421-800110-13 85,700 17 17-Apr-97 23-Apr-97 0422-800004-13 90,000 17 17-Apr-97 23-Apr-97 0421-800098-13 107,700 17 17-Apr-97 23-Apr-97 7501-999947-12 159,340 15.98 17-Apr-97 23-Apr-97 0421-800018-13 160,000 17 17-Apr-97 23-Apr-97 0421-800003-13 165,000 17 17-Apr-97 23-Apr-97 0418-800075-13 185,300 17 17-Apr-97 23-Apr-97 0421-800031-13 190,000 17 17-Apr-97 23-Apr-97 0418-800039-13 227,900 17 17-Apr-97 23-Apr-97 0418-800032-13 250,000 17 17-Apr-97 23-Apr-97 0418-800093-13 575,000 17 17-Apr-97 23-Apr-97 7418-333995-12 1,124,500 15.97 17-Apr-97 23-Apr-97 0422-110002-12 19,338 17 21-Apr-97 24-Apr-97 0421-111479-12 54,800 17 21-Apr-97 24-Apr-97 0418-110918-12 150,000 17.125 18-Apr-97 23-Apr-97 0418-110919-12 562,000 17 18-Apr-97 23-Apr-97 5501-999947-13 159,340 15.98 17-Apr-97 23-Apr-97 5418-333995-13 1,124,500 15.97 17-Apr-97 23-Apr-97 0418-333997-13 97,500 16.4 17-Apr-97 23-Apr-97 5430-333991-13 159,340 16.4 17-Apr-97 23-Apr-97 0418-333996-13 1,027,000 16.4 17-Apr-97 23-Apr-97 0418-333996-12 1,027,000 16.4 17-Apr-97 23-Apr-97 0418-333557-13 1,000 17 17-Apr-97 23-Apr-97 5418-333532-13 1,000 17 17-Apr-97 23-Apr-97 5418-333533-13 1,000 17 17-Apr-97 23-Apr-97 0418-333538-13 2,000 17 17-Apr-97 23-Apr-97 5421-333600-13 2,000 17 17-Apr-97 23-Apr-97 0418-333513-13 3,000 17 17-Apr-97 23-Apr-97 5418-333531-13 4,000 17 17-Apr-97 23-Apr-97 5418-333534-13 4,000 17 17-Apr-97 23-Apr-97 0418-333512-13 5,000 17 17-Apr-97 23-Apr-97 0418-333520-13 5,000 17 17-Apr-97 23-Apr-97 0418-333521-13 5,000 17 17-Apr-97 23-Apr-97 0418-333522-13 5,000 17 17-Apr-97 23-Apr-97 0418-333527-13 5,000 17 17-Apr-97 23-Apr-97 0418-333535-13 5,000 17 17-Apr-97 23-Apr-97 5418-333529-13 5,000 17 17-Apr-97 23-Apr-97 5421-333601-13 5,000 17 17-Apr-97 23-Apr-97 0418-333510-13 6,000 17 17-Apr-97 23-Apr-97 -35- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 0418-333505-13 6,300 17 17-Apr-97 23-Apr-97 0418-333515-13 7,500 17 17-Apr-97 23-Apr-97 0418-333504-13 8,400 17 17-Apr-97 23-Apr-97 0418-333508-13 10,000 17 17-Apr-97 23-Apr-97 0418-333523-13 10,000 17 17-Apr-97 23-Apr-97 0418-333524-13 10,000 17 17-Apr-97 23-Apr-97 0418-333528-13 10,000 17 17-Apr-97 23-Apr-97 0418-333980-13 10,400 17 17-Apr-97 23-Apr-97 0418-333514-13 17,500 17 17-Apr-97 23-Apr-97 0418-333518-13 20,000 17 17-Apr-97 23-Apr-97 0418-333516-13 25,000 17 17-Apr-97 23-Apr-97 0418-333517-13 28,000 17 17-Apr-97 23-Apr-97 0418-333506-13 30,000 17 17-Apr-97 23-Apr-97 0418-333509-13 30,000 17 17-Apr-97 23-Apr-97 0418-333519-13 30,000 17 17-Apr-97 23-Apr-97 0418-333525-13 30,000 17 17-Apr-97 23-Apr-97 0418-333502-13 33,700 17 17-Apr-97 23-Apr-97 0418-333503-13 41,200 17 17-Apr-97 23-Apr-97 0418-333526-13 50,000 17 17-Apr-97 23-Apr-97 0418-333507-13 75,000 17 17-Apr-97 23-Apr-97 0418-333511-13 180,000 17 17-Apr-97 23-Apr-97 0418-333536-13 300,000 17 17-Apr-97 23-Apr-97 0418-333997-12 97,500 16.4 17-Apr-97 23-Apr-97 0418-333546-13 1,000 17 17-Apr-97 23-Apr-97 0421-333503-13 1,000 17 17-Apr-97 23-Apr-97 0421-333506-13 1,000 17 17-Apr-97 23-Apr-97 0421-333507-13 1,000 17 17-Apr-97 23-Apr-97 0421-333508-13 1,000 17 17-Apr-97 23-Apr-97 5418-333541-13 1,000 17 17-Apr-97 23-Apr-97 5418-333543-13 1,000 17 17-Apr-97 23-Apr-97 5418-333549-13 1,000 17 17-Apr-97 23-Apr-97 5418-333556-13 1,000 17 17-Apr-97 23-Apr-97 5421-333504-13 1,000 17 17-Apr-97 23-Apr-97 5423-999339-13 1,000 17 17-Apr-97 23-Apr-97 0418-333539-13 2,000 17 17-Apr-97 23-Apr-97 0418-333547-13 2,000 17 17-Apr-97 23-Apr-97 0418-333548-13 2,000 17 17-Apr-97 23-Apr-97 0418-333552-13 2,000 17 17-Apr-97 23-Apr-97 0418-333555-13 2,000 17 17-Apr-97 23-Apr-97 0418-333558-13 2,000 17 17-Apr-97 23-Apr-97 0421-333501-13 2,000 17 17-Apr-97 23-Apr-97 -36- Essex International Inc. Cusip No. 297025108 Settlement REFERENCE # Pur. Sales Price Trade Date Date ----------- ----- ----- ------ ---------- ---------- 5423-999340-13 2,000 17 17-Apr-97 23-Apr-97 0418-333545-13 3,000 17 17-Apr-97 23-Apr-97 0418-333550-13 3,000 17 17-Apr-97 23-Apr-97 0421-333505-13 3,000 17 17-Apr-97 23-Apr-97 0421-333516-13 3,000 17 17-Apr-97 23-Apr-97 5418-333551-13 3,000 17 17-Apr-97 23-Apr-97 5418-333553-13 3,000 17 17-Apr-97 23-Apr-97 5421-333515-13 3,000 17 17-Apr-97 23-Apr-97 5421-333514-13 3,200 17 17-Apr-97 23-Apr-97 5418-333544-13 4,000 17 17-Apr-97 23-Apr-97 0418-333554-13 5,000 17 17-Apr-97 23-Apr-97 0421-333510-13 5,000 17 17-Apr-97 23-Apr-97 0421-333511-13 5,000 17 17-Apr-97 23-Apr-97 5421-333513-13 5,000 17 17-Apr-97 23-Apr-97 0418-333540-13 5,800 17 17-Apr-97 23-Apr-97 0418-333542-13 7,000 17 17-Apr-97 23-Apr-97 0421-333509-13 9,500 17 17-Apr-97 23-Apr-97 -37- EX-99.1 2 EXHIBIT 1 -- JOINT FILING AGREEMENT EXHIBIT 1 JOINT FILING AGREEMENT In accordance with Rule 13d-1(f) promulgated under the Securities Exchange Act of 1934, the undersigned agree to the joint filing of a Statement on Schedule 13D (including any and all amendments thereto) with respect to the shares of Essex International Inc. and further agree to the filing of this agreement as an Exhibit thereto. In addition, each party to this Agreement expressly authorizes each other party to this Agreement to file on its behalf any and all amendments to such Statement on Schedule 13D. Date: May 23, 1997 GOLDMAN, SACHS & CO. By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: Managing Director THE GOLDMAN SACHS GROUP, L.P. By: The Goldman Sachs Corporation, its general partner By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: Executive Vice President GS ADVISORS, L.P. By: GS Advisors, Inc., its general partner By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: President GS CAPITAL PARTNERS, L.P. By: GS Advisors, L.P., its general partner By: GS Advisors, Inc., its general partner By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: President STONE STREET FUND 1992, L.P. By: Stone Street Performance Corp., its general partner By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: Vice President BRIDGE STREET FUND 1992, L.P. By: Stone Street Performance Corp., its managing general partner By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: Vice President STONE STREET PERFORMANCE CORP. By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: Vice President -2- EX-99.2 3 EXHIBIT 2 -- REGISTRATION RIGHTS AGREEMENT EXHIBIT 2 - -------------------------------------------------------------------------------- REGISTRATION RIGHTS AGREEMENT by and among B E ACQUISITION CORPORATION* and The Persons Listed on the Signature Pages Hereof -------------------------------------------- Dated as of October 9, 1992 - -------------------------------------------------------------------------------- - ------------- * To which MS/Essex Holdings Inc. (to be renamed "BCP/Essex Holdings Inc.") shall succeed following the merger of B E Acquisition Corporation with and into MS/Essex Holdings Inc., which merger shall occur immediately following the execution of this Agreement. TABLE OF CONTENTS Section Page - ------- ---- 1. Definitions............................................. 1 2. Registration Under the Securities Act................... 8 (a) Required Registration.......................... 8 (b) Incidental Registration........................ 12 (c) Expenses....................................... 15 (d) Effective Registration Statement; Suspension.................................. 15 (e) Selection of Underwriters...................... 16 (f) Market Making Prospectus....................... 18 3. Hold-Back Agreements.................................... 18 (a) Restrictions on Public Sale by Holder of Registrable Securities................... 18 (b) Restrictions on Public Sale by the Company and Others.......................... 20 4. Registration Procedures................................. 21 5. Indemnification; Contribution........................... 29 (a) Indemnification by the Company................. 29 (b) Indemnification by Holders, Underwriters, Etc........................... 30 (c) Conduct of Indemnification Proceedings......... 31 (d) Contribution................................... 33 6. Miscellaneous........................................... 34 (a) No Inconsistent Agreements..................... 34 (b) Amendments and Waivers......................... 35 (c) Notices........................................ 36 (d) Successors and Assigns......................... 37 (e) Recapitalizations, Exchanges, Etc., Affecting Registrable Securities............ 37 (f) Third Party Beneficiary........................ 37 (g) Counterparts................................... 38 (h) Descriptive Headings, Etc...................... 38 (i) Severability................................... 38 (j) Governing Law.................................. 38 (k) Specific Performance........................... 39 (l) Entire Agreement............................... 39 REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of October 9, 1992, by and among B E ACQUISITION CORPORATION, a Delaware corporation (the "Company", which term shall refer to MS/Essex Holdings Inc. (to be renamed "BCP/Essex Holdings Inc.") following the merger of B E Acquisition Corporation with and into MS/Essex Holdings Inc., which merger shall occur immediately following the execution of this Agreement) and the Persons (other than the Company) listed on the signature pages hereof (herein referred to collectively as the "Initial Holders" and individually as an "Initial Holder") and any other Person that shall from and after the date hereof acquire any Registrable Securities or any securities convertible into or exchangeable or exercisable for such securities, directly or indirectly, from any Initial Holder or any transferee thereof, (herein referred to collectively as the "Holders" and individually as a "Holder"). This Agreement is made pursuant to the Stock and Warrant Subscription Agreement between the Company and the Initial Holders (the "Subscription Agreement") which provides for the sale to the Initial Holders of shares of the Company's Class A Common Stock, $.01 par value per share (the "Common Shares"), shares of the Company's Series A Cumulative Redeemable Exchangeable Preferred Stock (the "Series A Preferred"), which is exchangeable at the option of the Company for 15% Junior Subordinated Exchange Debentures of the Company (the "Exchange Debt"), and Warrants (the "Warrants"), each initially to purchase one Common Share (the "Warrant Shares"). In order to induce the Initial Holders to enter into the Subscription Agreement, and as a condition to the closing of the transactions contemplated thereby, the Company has agreed to provide the Holders with the registration and other rights set forth in this Agreement. NOW THEREFORE, in consideration of the premises and the representations, warranties and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows: Section 1. DEFINITIONS. (a) As used in this Agreement, the following terms shall have the following meanings: "Chemical Holders" shall mean Holders who are Chemical Equity Associates, a California Limited Partnership or Affiliates of or, directly or indirectly, successors to or transferees of Chemical Equity Associates, a California Limited Partnership. "Class" shall mean, when used to refer to Registrable Securities, each of (i) the Series A Preferred, (ii) the Common Shares (including any Non-Voting Common Shares convertible into Common Shares) and the Warrants, treated as a single class, and (iii) the Exchange Debt, each of (i), (ii) and (iii) treated as a separate class. "Commencement Date" shall mean (i) with respect to the Series A Preferred and the Exchange Debt, the earlier of (A) the second anniversary of the Closing Date, and (B) an Event of Public Distribution, and (ii) with respect to the Warrants and the Common Shares, treated as a single Class, the earliest of (A) the fifth anniversary of the Closing Date, (B) an Event of Public Distribution and (C) with respect to a request to effect a Required Registration involving Common Shares amounting to at least 10% of the Common Shares outstanding immediately following the Acquisition and having an aggregate offering price of at least $35 million (based on the then-Current Market Price (as such term is defined in the Warrant Agreement pursuant to which the Warrants are issued (provided that, in the case of an initial public offering, the Underwriter shall make the determination contemplated by such definition), the third anniversary of the Closing Date (provided, however, that, in the event that any Holder shall, pursuant to paragraph (a) or (b) of Section 2, have requested that any Common Shares be included in any Registration Statement, and shall have been subject to any reduction pursuant to Section 2(a)(ii) or 2(b)(ii) in the maximum number of Registrable Securities which such Holder may register, the Commencement Date with respect to a request to effect a Required Registration involving Common Shares amounting to at least 7.5% of the Common Shares outstanding immediately following the Acquisition and having an aggregate offering price of at least $26.25 million (based on the then-Current Market Price determined as set forth in this clause (c)), shall also be the third anniversary of the Closing Date). "Common Shares" shall have the meaning set forth in the preamble, and each reference thereto herein shall include the Warrant Shares. -2- "Company" shall have the meaning set forth in the preamble and shall also include the Company's successors. "Corresponding Class" shall mean (i) when used with reference to any series of preferred stock of the Company, the Series A Preferred, and vice-versa, (ii) when used with reference to any class of common stock of the Company, the Warrants and the Common Shares, treated as a single class, and vice-versa, and (iii) when used with reference to any issue of debt of the Company, the Exchange Debt, and vice-versa. "DLJ Holders" shall mean Holders who are DLJ Investors or Affiliates of or, directly or indirectly, successors to or transferees of DLJ Investors. "DLJ Trigger" shall mean any time at which the sum of (w) the aggregate amount originally paid in respect of Common Shares owned by the DLJ Holders, plus (x) the aggregate liquidation preference of shares of Series A Preferred owned by the DLJ Holders (or, if any Exchange Debt is outstanding, the aggregate principal amount of Exchange Debt owned by the DLJ Holders), plus (y) the aggregate amount paid upon exercise of Warrants relating to Warrant Shares owned by the DLJ Holders, plus (z) the aggregate liquidation preference of any shares of Series A Preferred previously owned by the DLJ Holders and their predecessors and redeemed or repurchased by or at the direction of the Corporation (or, if any Exchange Debt is outstanding, the aggregate principal amount of any Exchange Debt previously owned by the DLJ Holders and their predecessors and redeemed or repurchased by or at the direction of the Corporation), shall be less than $10,000,000. "DLJSC" shall mean Donaldson Lufkin & Jenrette Securities Corporation and its successors. "Event of Public Distribution" shall mean the earliest of (x)any sale to the public of any common equity of the Company, (y) such time as the Company would be subject to the registration requirements of Section 12 of the Exchange Act by virtue of the number of holders of its common equity, (z) such time as any common equity of the Company is listed on any securities exchange or on the NASDAQ National Market System or listed, traded or quoted on another similar public trading or reporting system. -3- "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time. "Exchange Debt" shall have the meaning set forth in the preamble. "GS" shall mean Goldman, Sachs & Co. and its successors. "GS Holders" shall mean Holders who are GS Investors or Affiliates of or, directly or indirectly, successors to or transferees of GS Investors. "GS Trigger" shall have the same meaning as "DLJ Trigger", substituting in such definition "GS" each time "DLJ" appears. "Holder" shall have the meaning set forth in the preamble. "Incidental Registration" shall mean a registration required to be effected pursuant to Section 2(b). "Incidental Registration Statement" shall mean a registration statement of the Company, as provided in Section 2(b), which covers any of the Registrable Securities on an appropriate form in accordance with the Securities Act and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all materials incorporated by reference therein. "Initial Holder" shall have the meaning set forth in the preamble. "Majority Holders" shall mean (i) with respect to the Series A Preferred, Holders representing a majority of the aggregate number of outstanding shares of Series A Preferred held by Holders, (ii) with respect to the Warrants and the Common Shares, treated as a single class, Holders of Warrants or Common Shares representing in the aggregate a majority of the aggregate number of outstanding Common Shares held by Holders and Warrant Shares issuable upon exercise of all outstanding Warrants held by Holders and (iii) with respect to the Exchange Debt, Holders representing a majority in aggregate -4- principal amount of the outstanding Exchange Debt held by Holders, as the case may be; provided, however, that to the extent an action is to be taken with respect to a specific registration, Majority Holders shall mean the Holders of Registrable Securities in the applicable Class representing a majority of the shares (including shares issuable upon exercise of Warrants), liquidation preference or principal amount of Registrable Securities in such Class to be registered. "NASD" shall mean the National Association of Securities Dealers, Inc. "Non-Voting Common Shares" shall mean the Class B Common Stock, par value $0.01 per share, of the Corporation convertible into Common Shares. "Person" shall mean any individual, limited or general partnership, corporation, trust, joint venture, association, joint stock company or unincorporated organization or any government or agency, regulatory body or other authority or political subdivision thereof. "Prospectus" shall mean the prospectus included in a Registration Statement, including any preliminary Prospectus, and any such Prospectus as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities and by all other amendments and supplements to such Prospectus, including post-effective amendments, and in each case including all material incorporated by reference therein. "Registrable Securities" shall mean the Series A Preferred, the Exchange Debt, the Warrants and the Common Shares (but shall not include any share of Series A Preferred, any debenture representing Exchange Debt, any Warrant or any Common Share, (i) which has been effectively registered under the Securities Act and disposed of in accordance with a Registration Statement covering such security or (ii) which has been distributed to the public pursuant to Rule 144 under the Securities Act, and, in each such case, the certificate or other evidence of ownership of which does not and is not required to bear any legend previously required by the Subscription Agreement, the Certificate of Designation of the Series A Preferred or the indenture for the Exchange Debt or any other legend of similar import and is not subject to any stop transfer order). -5- "Registration Expenses" shall mean any and all expenses incident to performance of or compliance with this Agreement by the Company and its subsidiaries, including: (i) all SEC, stock exchange, NASD and other registration and filing fees (including, if applicable, in the first registration effected pursuant to Section 2(a) at the request of DLJ Holders, in the first registration effected pursuant to Section 2(a) at the request of GS Holders, and in any registration effected pursuant to Section 2(b), the fees and expenses of any "qualified independent underwriter" (and its counsel) that is required to be retained in accordance with the rules and regulations of the NASD), (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws and compliance with the rules of the NASD (including reasonable fees and disbursements of counsel in connection such compliance and the preparation of a Blue Sky Memorandum and legal investment survey), (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements, transmittal letters, securities sales agreements, securities certificates and other documents relating to the performance of and compliance with this Agreement, (iv) all fees and expenses incurred in connection with the listing, if any, of any of the Registrable Securities on any securities exchange or exchanges pursuant to Section 4(n), (v) the reasonable fees of one counsel retained, in connection with the first registration effected pursuant to Section 2(a) at the request of DLJ Holders and the first registration effected pursuant to Section 2(a) at the request of GS Holders, by the Majority Holders initially requesting each such registration, -6- (vi) the fees and disbursements of counsel for the Company and of the independent public accountants of the Company, including the expenses of any annual or special audits or "cold comfort" letters required by or incident to such performance and compliance, (vii) the fees and expenses of any trustee, transfer agent, registrar, escrow agent or custodian, (viii) any fees and disbursements of the Underwriters customarily required to be paid by issuers or sellers of securities and relating to the sale or disposition of Registrable Securities by a Holder, but excluding discounts and commissions payable to underwriters, selling brokers, managers or other similar Persons engaged in the distribution of any of the Registrable Securities, (ix) the reasonable fees and expenses of any special experts or other persons retained by the Company in connection with any Registration Statement, and (x) all internal expenses of the Company (including all salaries and expenses of officers and employees performing legal or accounting duties). "Registration Statement" shall mean any registration statement of the Company which covers any Registrable Securities and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein. "Required Registration" shall mean a registration required to be effected pursuant to Section 2(a). "Required Registration Statement" shall mean a registration statement of the Company which covers all of the Registrable Securities requested to be included therein pursuant to the provisions of Section 2(a) on an appropriate form pursuant to the Securities Act, and which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein. -7- "SEC" shall mean the Securities and Exchange Commission. "Securities Act" shall mean the Securities Act of 1933, as amended from time to time. "Series A Preferred" shall have the meaning set forth in the preamble. "Subscription Agreement" shall have the meaning set forth in the preamble. "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended from time to time. "Underwriter" shall have the meaning set forth in Section 5(a). "Underwritten Offering" shall mean a sale of securities of the Company to an Underwriter or Underwriters for reoffering to the public. "Warrant Shares" shall have the meaning set forth in the preamble. "Warrants" shall have the meaning set forth in the preamble. (b) Capitalized terms use herein and not otherwise defined shall have the meanings assigned such terms in the Subscription Agreement. Section 2. REGISTRATION UNDER THE SECURITIES ACT. (a) Required Registration (i) Right to Require Registration. At any time from and after the Commencement Date applicable to a Class of Registrable Securities, one or more DLJ Holders of any Class of Registrable Securities having an aggregate of at least 50% of the Registrable Securities of such Class held by DLJ Holders, one or more GS Holders of any Class of Registrable Securities having an aggregate of -8- at least 50% of the Registrable Securities of such class held by GS Holders, or one or more Holders of any Class of Registrable Securities having an aggregate of at least 50% of such Class of Registrable Securities held by Holders, shall have the right to request in writing (which request shall specify the Registrable Securities of such Class intended to be disposed of by such Holders and the intended method of distribution thereof) that the Company register such Holders' Registrable Securities of such Class by filing with the SEC a Required Registration Statement. Upon the receipt of such a request, the Company will promptly give written notice of such requested registration to all DLJ Holders and GS Holders of Registrable Securities of the same Class, and, not later than the 60th calendar day after the receipt of such a request by the Company, the Company will cause to be filed a Required Registration Statement covering the Registrable Securities of such Class which the Company has been so requested to register in such request and all other Registrable Securities of such Class which the Company has been requested to register by DLJ Holders or GS Holders thereof by written request given to the Company within 30 days after the giving of such written notice by the Company, providing for the registration under the Securities Act of the Registrable Securities of such Class which the Company has been so requested to register by all such Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of distribution thereof specified in such request or requests (provided that the Company may delay such filing by not more than 30 days if the Company, prior to the time it would otherwise have been required to file such Registration Statement, determines in good faith and for valid business reasons (not including avoidance of the Company's obligations hereunder) to take an action, including the acquisition or divestiture of assets, or if an event has occurred, in either case that would have to be disclosed in a Registration Statement and that, in the reasonable judgment of the company, would be detrimental to the Company if so disclosed), and shall use its reasonable best efforts to have such Required Registration Statement declared effective by the SEC as soon as practicable thereafter (but in no event later than the 120th calendar day after the receipt of such a request) and to keep such Required Registration Statement continuously effective for a period of at least 180 calendar days following the date on which such Required Registration Statement is declared effective (or such shorter period which will -9- terminate when all of the Registrable Securities covered by such Required Registration Statement have been sold pursuant thereto), including, if necessary, by filing with the SEC a post- effective amendment or a supplement to the Required Registration Statement or the related Prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Required Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Required Registration Statement or by the Securities Act, any state securities or blue sky laws, or any rules and regulations thereunder. The Company shall not be required to effect, pursuant to this Section 2(a), (x) with respect to the Series A Preferred and the Exchange Debt, more than two registrations requested by DLJ Holders or more than one registration requested by GS Holders, or (y) with respect to the Warrants and the Common Shares, treated as a single Class, more than two registrations predicated on a Commencement Date set forth in sub-clause (A) or ((B) of clause (ii) of the definition of Commencement Date and requested by GS Holders, more than one registration predicated on a Commencement Date set forth in sub-clause (C) of clause (ii) of the definition of Commencement Date and requested by GS Holders, more than two registrations predicated on a Commencement Date set forth in sub-clause (A) or (B) of clause (ii) of the definition of Commencement Date and requested by DLJ Holders, or more than one registration predicated on a Commencement Date set forth in sub-clause (C) of clause (ii) of the definition of Commencement Date and requested by DLJ Holders. A registration shall be deemed to have been requested by Holders who are DLJ Holders or Holders who are GS Holders, as the case may be, if the Majority Holders initially requesting such registration are DLJ Holders or GS Holders, as the case may be. In addition, the Company shall not be required to effect a registration of any Class of Registrable Securities if less than 90 calendar days have elapsed since the effective date of a prior Registration Statement with respect to such Class or a Corresponding Class or if less than 120 calendar days have elapsed since the effective date of a prior Registration Statement with respect to such Class or a Corresponding Class and with respect to which all Holders of such Class were given the -10- opportunity, in accordance with the provisions of Section 2(a), to register their Registrable Securities of such Class (without being subject to any reduction, pursuant to Section 2(a)(ii), in the maximum number of Registrable Securities which they may register). Notwithstanding the foregoing, the Company shall be entitled to postpone the filing of a Registration Statement requested to be filed pursuant to this paragraph (a) solely with respect to Warrants or Common Shares for a period not to exceed 30 days after the date such Registration Statement would otherwise be required to be filed if the Company, no later than the expiration of the time by which it would otherwise have been required to file a Registration Statement required to be filed pursuant to this paragraph (a) notifies the DLJ Holders and GS Holders of Warrants and Common Shares, if any, that the Company has determined to conduct an initial public offering of its common equity and prior to the expiration of such 30 day period the Company files a Registration Statement with respect to such offering. The registration rights granted pursuant to the provisions of this paragraph (a) shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2. (ii) Priority in Required Registrations. If a Required Registration pursuant to this paragraph (a) involves an Underwritten Offering of Registrable Securities, which Registrable Securities are to be distributed (on a firm commitment basis) by or through one or more Underwriters of recognized standing under underwriting terms appropriate for such transaction, and the Underwriter or the managing Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each DLJ Holder and each GS Holder of Registrable Securities requesting registration) on or before the date 5 days prior to the date then scheduled for such offering that, in its opinion, the amount of Registrable Securities and other securities requested to be included in such Required Registration exceeds the amount which can be sold in (or during the time of) such offering within a price range acceptable to the DLJ Holders and GS Holders of Registrable Securities who have requested that their Registrable Securities be included in such Required Registration, the Company will include in such Required Registration only the amount of Registrable Securities and other securities that the Company is so advised can be sold -11- in (or during the time of) such offering within such price range; provided, however, that the Company shall be required to include in such Required Registration first, all Registrable Securities of the DLJ Holders or GS Holders initially requesting registration pursuant hereto and any other Registrable Securities of DLJ Holders or GS Holders of such Class of Registrable Securities requesting to be included in such registration pursuant hereto before including any other securities in such Required Registration, and, to the extent not all such Registrable Securities can be included in such Required Registration, the number of Registrable Securities to be included shall be allocated pro rata among the DLJ Holders and GS Holders thereof requesting such registration on the basis of the number of shares of Series A Preferred, the number of Warrants or Common Shares, or the principal amount of Exchange Debt, as the case may be, of the Registrable Securities requested to be included by all such DLJ Holders and GS Holders; and second, all other securities requesting to be included in such registration, and, to the extent not all such securities can be included in such Required Registration, the number of securities to be included shall be allocated pro rata among the holders thereof requesting such registration on the basis of the number of shares of common stock, the number of warrants, the liquidation preference of preferred stock, or the principal amount of debt, as the case may be, of the securities requested to be included by all such holders; and provided, further, that in the event the Company will not, by virtue of this paragraph, include in any Required Registration all of the Registrable Securities of any DLJ Holder and GS Holder requested to be included in such Required Registration, such DLJ Holder or GS Holder may, upon written notice to the Company given within 5 days of the time such DLJ Holder or GS Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such Required Registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included. (b) Incidental Registration. (i) Right to Include Registrable Securities. If the Company at any time proposes to register any of its securities under the Securities Act (other than (A) any registration of public sales or distributions solely by and for the account of the Company of securities issued (x) pursuant to any employee benefit or similar plan or any dividend reinvestment plan or (y) in any acquisition by -12- the Company, (B) pursuant to paragraph (a) of this Section, or (C) pursuant to a registration statement filed in connection with an exchange offer), whether in connection with a primary or secondary offering, and whether or not the Commencement Date applicable to the Corresponding Class of Registrable Securities shall have occurred, and there are Registrable Securities of the Corresponding Class (but, prior to the fifth anniversary of the Closing Date, excluding, in the event of any offering other than of warrants to purchase any class of common stock of the Company, Warrants) outstanding which at such time are not then registered under another Registration Statement which is then effective, the Company will, each time it intends to effect such a registration, give written notice to all Holders of Registrable Securities of such Corresponding Class at least 20 days prior to the initial filing of a Registration Statement with the SEC pertaining thereto, informing such Holders of its intent to file such Registration Statement and of such Holders' rights to request the registration of the Registrable Securities of the Corresponding Class held by such Holders under this paragraph (b); provided, however, that the Company shall not be required to give this notice with respect to any registration in which no Holders of Registrable Securities will be entitled to participate; provided, further, however, that in order for Holders of Warrants to participate in a registration with respect to the sale of common stock of the Company in an initial public offering, they must furnish the Company with an undertaking to exercise all Warrants in respect of their Warrant Shares to be sold in the offering prior to the closing thereof. Upon the written request of any such Holder made within 10 days after any such notice is given (which request shall specify the Registrable Securities intended to be disposed of by such Holder and the intended method of distribution thereof), the Company will use its reasonable best efforts to effect the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by the Holders thereof to the extent required to permit the disposition (in accordance with the intended methods of distribution thereof) of the Registrable Securities so requested to be registered, including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Incidental Registration Statement or the related Prospectus or any document incorporated therein by reference or by filing any other required document or -13- otherwise supplementing or amending the Incidental Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Incidental Registration Statement or by the Securities Act, any state securities or blue sky laws, or any rules and regulations thereunder; provided, however, that Holders of Series A Preferred or Exchange Debt, as the case may be, shall not have the right to include such securities in an Incidental Registration Statement hereunder filed in connection with an offering of securities the proceeds of which will be used to redeem completely such securities; provided, further, that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the Incidental Registration Statement filed in connection with such registration, the Company shall determine for any reason not to register or to delay registration of such securities, the Company may, at its election, give written notice of such determination to each Holder of Registrable Securities and, thereupon, (A) in the case of a determination not to register, the Company shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses incurred in connection therewith), and (B) in the case of a determination to delay such registration, the Company shall be permitted to delay registration of any Registrable Securities requested to be included in such Incidental Registration Statement for the same period as the delay in registering such other securities. The registration rights granted pursuant to the provisions of this paragraph (b) shall be in addition to the registration rights granted pursuant to the other provisions of this Section. (ii) Priority in Incidental Registrations. If a registration pursuant to this paragraph (b) involves an Underwritten Offering of the securities so being registered, whether or not for sale for the account of the Company, which securities are to be distributed (on a firm commitment basis) by or through one or more Underwriters of recognized standing under underwriting terms appropriate for such transaction, and the Underwriter or the managing Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder of Registrable Securities requesting registration) on or before the date 5 days prior to the date then scheduled for such offering -14- that, in its opinion, the amount of securities (including Registrable Securities) requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering without adversely affecting the distribution of the securities being offered, then the Company will include in such registration first, all the securities initially proposed to be sold pursuant to such registration statement, and second, the amount of other securities (including Registrable Securities) requested to be included in such registration that the Company is so advised can be sold in (or during the time of) such offering, allocated, if necessary, pro rata among the holders (including the Holders) thereof requesting such registration on the basis of the number, principal amount or liquidation preference, as the case may be, of the securities (including Registrable Securities) requested to be included by all such holders; provided, however, that in the event the Company will not, by virtue of this paragraph, include in any such registration all of the Registrable Securities of any Holder requested to be included in such registration, such Holder may, upon written notice to the Company given within 5 days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included. (c) Expenses. The Company agrees to pay all Registration Expenses in connection with each registration pursuant to this Section. Each Holder shall pay all discounts and commissions payable to underwriters, selling brokers, managers or other similar Persons related to the sale or disposition of such Holder's Registrable Securities pursuant to any such registration. (d) Effective Registration Statement; Suspension. A Registration Statement pursuant to this Section will not be deemed to have become effective (and the related registration will not be deemed to have been effected) unless it has been declared effective by the SEC prior to a request by the party requesting such registration to withdraw such Registration Statement (provided that if such request is made at a time when such Registration Statement would be promptly declared effective if a request to accelerate such effectiveness were made to the SEC, such Registration Statement will be deemed to have become -15- effective (and the related registration will be deemed to have been effected); provided, however, that if, after it has been declared effective, the offering of any Registrable Securities pursuant to such Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court (other than any such stop order or injunction issued as a result of the inclusion in such Registration Statement of any information supplied to the Company for inclusion therein by a Holder of Registrable Securities), such Registration Statement will be deemed not to have become effective. Any period during which the Company fails to keep any Required Registration Statement effective and usable for resale of Registrable Securities shall be referred to as a "Suspension Period." A Suspension Period shall commence on and include the date that the Company gives notice that any Required Registration Statement is no longer effective or usable for resale of Registrable Securities to and including the date when each Holder of Registrable Securities covered by such Required Registration Statement either receives the copies of the supplemented or amended Prospectus contemplated by Section 4(j) or is advised in writing by the Company that the use of the Prospectus may be resumed. In the event of one or more Suspension Period, the 180-day time period referenced in paragraph (a) of this Section shall be extended by the number of days included in each such Suspension Period, and, in the event any Suspension Period occurs sooner than 30 days after the end of the previous Suspension Period or 30 days after the initial effectiveness of any Required Registration Statement, none of the days between such Suspension Periods or prior to such Suspension Period shall be included in computing such 180-day time period. (e) Selection of Underwriters. At any time or from time to time, the Majority Holders of each applicable Class of Registrable Securities covered by a Registration Statement may elect to have such Registrable Securities sold in an Underwritten Offering. In the event (x) such Majority Holders are DLJ Holders, DLJSC shall, if DLJSC agrees to such engagement and subject to the provisio to this clause (x), have the right to act as the sole Underwriter (or, at DLJSC's option, the managing Underwriter) of the offering of such Registrable Securities on terms customary for such type of underwriting (provided that if any of the -16- Holders of Registrable Securities covered by such Registration Statement are GS Holders, GS shall, if GS agrees to such engagement, have the right to act as co-exclusive or co- managing Underwriter, as the case may be, of the offering of such Registrable Securities), and (y) if such Majority Holders are GS Holders, GS shall, if GS agrees to such engagement and subject to the proviso to this clause (y), have the right to act as the sole Underwriter (or, at GS's option, the managing Underwriter) of the offering of such Registrable Securities on terms customary for such type of underwriting (provided that if any of the Holders of Registrable Securities covered by such Registration Statement are DLJ Holders, DLJSC shall, if DLJSC agrees to such engagement, have the right to act as co-exclusive or co-managing Underwriter, as the case may be, of the offering of such Registrable Securities), and (z) if such Majority Holders are neither DLJ Holders nor GS Holders, DLJSC and GS shall, in alternation, if DLJSC or GS, as the case may be, agrees to such engagement and subject to the proviso to this clause (z), have the right to act as the sole Underwriter (or, at DLJSC's or GS's, as the case may be, option, the managing Underwriter) of the offering of such Registrable Securities on terms customary for such type of underwriting (provided that if any of the Holders of Registrable Securities covered by such Registration Statement are DLJ Holders or GS Holders, DLJSC or GS, as the case may be, shall, if DLJSC or GS, as the case may be, agrees to such engagement, have the right to act as co-exclusive or co- managing Underwriter, as the case may be, of the offering of such Registrable Securities). If neither DLJSC nor GS agrees in writing to such engagement at the time the Majority Holders of such class of Registrable Securities elect to sell their Registrable Securities in an Underwritten Offering or at any time thereafter, the investment banker or investment bankers and manager or managers that will serve as Underwriter with respect to the offering of such Registrable Securities will be selected by the Majority Holders of such Class of Registrable Securities; provided that such investment bankers and managers must be reasonably satisfactory to the Company. No Holder may participate in any Underwritten Offering hereunder unless such Holder (a) agrees to sell such Holder's securities on the basis provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of -17- attorney, indemnities, underwriting agreements and other documents required under the terms of such Underwritten Offering. Notwithstanding the foregoing, however, nothing herein shall require any securities covered by a Registration Statement pursuant to Section 2(b) that are not held by a DLJ Holder or a GS Holder to be sold in an Underwritten Offering, or, in the event any such securities are sold in an Underwritten Offering, require that either DLJSC or GS act as Underwriter with respect thereto. (f) Market Making Prospectus. In addition to the other obligations of the Company pursuant to this Section, the Company agrees that at its expense (including the reasonable fees and expenses of counsel to DLJSC and GS), at the request of DLJSC or GS, the Company will, at the time of filing any other Registration Statement relating to any Class of Registrable Securities, whether hereunder or otherwise, (i) prepare a Registration Statement in connection with the market making activities of DLJSC or GS with respect to such Class of Registrable Securities containing such disclosures as may be required by the Securities Act and other applicable laws and such other disclosures as are customary and appropriate for such a document and (ii) file such Registration Statement and use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act as soon as practicable thereafter, but in any event no later than such time as such other Registration Statement relating to any of such Class of Registrable Securities shall become effective, and to keep such Registration Statement in effect as long as is required in DLJSC's or GS's judgment to permit DLJSC or GS to engage in market making activities with respect to such Class of Registrable Securities, but in no event for more than eighteen months after such other Registration Statement shall become effective; provided, however, that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including the acquisition or divestiture of assets, so long as the Company as promptly as reasonably possible thereafter complies with the requirements of Section 4(e)(iv) and 4(j). Section 3. HOLD-BACK AGREEMENTS. (a) Restrictions on Public Sale by Holder of Registrable Securities. Each Holder of Registrable Securities whose Registrable Securities are covered -18- by a Registration Statement filed pursuant to Section 2 agrees, if the offering is an Underwritten Offering, that if requested by the Underwriter or managing Underwriter in such an Underwritten Offering, not to effect any public sale or distribution of securities of the Company of the same class or classes as the securities included in the Registration Statement during the 14-day period prior to, and during the 90-day period beginning on, the effective date of the Registration Statement (except pursuant to the Registration Statement). Each Holder of Registrable Securities agrees not to effect any public sale or distribution of any Registrable Securities that are in a Corresponding Class to any securities of the Company offered and sold by the Company, Bessemer, any DLJ Holder, any GS Holder or any other Qualifying Seller (as hereinafter defined) pursuant to an effective registration statement with respect to such securities or to an Underwritten Offering of such securities, during the 14-day period prior to, and during the 90-day period beginning on, (1) the effective date of a registration statement with respect to such securities, or (2) the commencement of an Underwritten Offering of such securities, in each case, if requested by the Underwriter or managing Underwriter in such an Underwritten Offering, or by the holders of such securities (except pursuant to such registration statement). The Company agrees not to waive or modify in any respect detrimental to the Holders of Registrable Securities the corresponding commitment of Bessemer with respect to the forbearance of Bessemer and its Affiliates and successors from public sales and distributions of securities which are in a Corresponding Class with respect to Registrable Securities being registered pursuant to a Registration Statement. Notwithstanding anything to the contrary herein, the foregoing provisions shall not prohibit or impose any restrictions on any public sale or distribution of any Registrable Securities by Holders if such prohibition or restriction would, together with any other prohibition or restriction imposed hereunder on the public sale or distribution of any Registrable Securities by Holders, result in such Holders being prohibited or restricted from the public sale or distribution of any Registrable Securities for an aggregate period in excess of 180 days during any 12-month period. -19- The foregoing provisions shall not apply to any Holder of Registrable Securities if such Holder is prevented by applicable statute or regulation from entering into any such agreement; provided, however, that any such Holder shall, if requested by the Underwriter or managing Underwriter in an Underwritten Offering referred to in the previous paragraph, undertake not to effect any public sale or distribution of the Class of Registrable Securities being registered for a 90-day period commencing on the date of sale of such Class of Registrable Securities in such Underwritten Offering unless it has provided written notice of such sale or distribution to the Underwriter or managing Underwriter within 30 days after receipt of prior written notice from the Company or the Underwriter or managing Underwriter of such Underwritten Offering. (b) Restrictions on Public Sale by the Company and Others. The Company agrees (i) not to effect any public sale or distribution (other than public sales or distributions solely by and for the account of the Company of securities issued (x) pursuant to any employee benefit or similar plan or any dividend reinvestment plan or (y) in any acquisition by the Company) of any securities which are in a Corresponding Class with respect to those Registrable Securities being registered pursuant to a Registration Statement filed pursuant to paragraph (a) of Section 2, or any securities convertible into or exchangeable or exercisable for such securities, during the 14-day period prior to, and during the 90-day period beginning on, (1) the effective date of a Registration Statement, or (2) the commencement of an Underwritten Offering, in each case, if requested by the Underwriter or managing Underwriter in such an Underwritten Offering, or by the Holder of such Registrable Securities; and (ii) that any agreement entered into after the date of this Agreement pursuant to which the Company issues or agrees to issue any privately placed securities shall contain a provision under which holders of such securities agree not to effect any public sale or distribution of any securities that are in a Corresponding Class to Registrable Securities, or any securities convertible into or exchangeable or exercisable for such securities, during the periods described in (i) above, in each case including a sale pursuant to Rule 144 under the Securities Act (each holder who shall have entered into and continued to abide by such provision, a "Qualifying Seller"). -20- Section 4. REGISTRATION PROCEDURES. In connection with the obligations of the Company pursuant to Section 2, the Company shall use its reasonable best efforts to effect or cause to be effected the registration of the Registrable Securities under the Securities Act to permit the sale of such Registrable Securities by the Holders in accordance with their intended method or methods of distribution, and the Company shall: (a)(i) prepare and file a Registration Statement with the SEC, within the time period specified in paragraph (b) of Section 2 with respect to a Required Registration, which Registration Statement (x) shall be on a form selected by the Company for which the Company qualifies and shall be reasonably acceptable to counsel for the Holders, (y) shall be available for the sale or exchange of the Registrable Securities in accordance with the intended method or methods of distribution by the selling or exchanging Holders thereof, and (z) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith, (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective in accordance with Section 2, (iii) use its reasonable best efforts to prevent the happening of any event that would cause a Registration Statement to contain a material misstatement or omission or to be not effective and usable for resale of Registrable Securities during the period that such Registration Statement is required to be effective and usable; provided, however, that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including the acquisition or divestiture of assets, so long as the Company as promptly as reasonably possible thereafter complies with the requirements of Section 4(j), if applicable, and (iv) cause each Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of such Registration Statement, amendment or supplement (x) to comply in all material respects with any requirements of the Securities Act and the rules and regulations of the SEC and (y) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; -21- (b) subject to paragraph (j) of this Section 4, prepare and file with the SEC such amendments and post- effective amendments to each such Registration Statement, as may be necessary to keep such Registration Statement effective for the applicable period; cause each such Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by each Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof, as set forth in such registration statement; (c) furnish to each Holder of Registrable Securities and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder or Underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities; the Company hereby consents to the use of the Prospectus, including each preliminary Prospectus, by each Holder of Registrable Securities and each Underwriter of an Underwritten Offering of Registrable Securities, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or the preliminary Prospectus; (d)(i) use its reasonable best efforts to register or qualify the Registrable Securities, no later than the time the applicable Registration Statement is declared effective by the SEC, under all applicable state securities or "blue sky" laws of such jurisdictions as each Underwriter, if any, or any Holder of Registrable Securities covered by a Registration Statement, shall reasonably request; (ii) keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective; and (iii) do any and all other acts and things which may be reasonably necessary or advisable to enable each such Underwriter, if any, and Holder to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Holder; provided, however, that the Company shall not be required to register or qualify the Registrable Securities -22- in any jurisdiction if registration or qualification in such jurisdiction would subject the Company to unreasonably burden or expense or, in the case of an Underwritten Offering, would unreasonably delay the commencement of such Underwritten Offering; and provided, further, that the Company shall not be obligated to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject or to consent to be subject to general service of process (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith) in any such jurisdiction; (e) notify each Holder of Registrable Securities promptly, and, if requested by such Holder, confirm such advice in writing, (i) when a Registration Statement has become effective and when any post-effective amendments and supplements thereto become effective, (ii) of the issuance by the SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iii) if, between the effective date of a Registration Statement and the closing of any sale of securities covered thereby pursuant to any agreement to which the Company is a party, the representations and warranties of the Company contained in such agreement cease to be true and correct in all material respects or if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, and (iv) of the happening of any event during the period a Registration Statement is effective as a result of which such Registration Statement or the related Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (f) furnish counsel for each such Underwriter, if any, and for the Holders of Registrable Securities copies of any request by the SEC or any state securities authority for amendments or supplements to a Registration Statement and Prospectus or for additional information; -23- (g) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible time; (h) upon request, furnish to the Underwriter or managing Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, at least one signed copy of each Registration Statement and any post- effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits; and furnish to each Holder of Registrable Securities, without charge, at least one conformed copy of each Registration Statement and any post- effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested); (i) cooperate with the selling Holders of Registrable Securities and the Underwriter or managing Underwriter of an Underwritten Offering of Registrable Securities, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as the selling Holders or the Underwriter or managing Underwriter of an Underwritten Offering of Registrable Securities, if any, may reasonably request at least three business days prior to any sale of Registrable Securities; (j) upon the occurrence of any event contemplated by paragraph (e)(iv) of this Section, use its reasonable best efforts to prepare a supplement or post-effective amendment to a Registration Statement or the related Prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (k) enter into customary agreements (including, in the case of an Underwritten Offering, underwriting agreements in customary form, and including provisions with respect to indemnification and contribution in customary -24- form and consistent with the provisions relating to indemnification and contribution contained herein) and take all other customary and appropriate actions in order to expedite or facilitate the disposition of such Registrable Securities (provided that, in the event of any registration that is not part of an Underwritten Offering, no such agreement or action shall be required to be taken if unduly burdensome to the Company) and in connection therewith: (1) make such representations and warranties to the Holders of such Registrable Securities and the Underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing Underwriters, if any, and the holders of a majority of the number of shares or warrants, principal amount or liquidation preference, as the case may be, of the Registrable Securities being sold) addressed to each selling Holder and the Underwriters, if any, covering the matters customarily covered in opinions requested in sales of securities or underwritten offerings and such other matters as may be reasonably requested by such Holders and Underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling Holders of Registrable Securities and the Underwriters, if any, which letters shall be customary in form and shall cover matters of the type customarily covered in "cold comfort" letters to underwriters in connection with primary underwritten offerings; (4) enter into a securities sales agreement with the Holders and DLJSC or GS, as the case may be, or such other representative as the Majority Holders of any class of Registrable Securities covered by any Registration Statement relating to the Registration and providing for, among other things, the appointment of DLJSC or GS, as the case may be, or such other representative as agent for the selling Holders for the purpose of soliciting purchases of Registrable Securities, which agreement shall be customary in form, substance and scope and shall contain customary representations, warranties and covenants; -25- (5) if an underwriting agreement is entered into, cause the same to set forth indemnification provisions and procedures substantially equivalent to the indemnification provisions and procedures set forth in Section 5 with respect to all parties to be indemnified pursuant to said Section; and (6) deliver such customary documents and certificates as may be reasonably requested by the Majority Holders of any class of Registrable Securities being sold or by the managing Underwriters, if any. The above shall be done (i) if customary, at the effectiveness of such Registration Statement (and each post- effective amendment thereto) in connection with any registration that is part of an Underwritten Offering, (ii) at the effectiveness of such Registration Statement (and each post-effective amendment thereto) in connection with any registration that is not part of an Underwritten Offering, and (iii) at each closing under any underwriting or similar agreement as and to the extent required thereunder; (l) make available for inspection by representatives of the Holders of the Registrable Securities and any Underwriters participating in any disposition pursuant to a Registration Statement and any counsel or accountant retained by such Holders or Underwriters, all relevant financial and other records, pertinent corporate documents and properties of the Company and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representative, Underwriter, counsel or accountant in connection with a Registration Statement; provided, however, that such records, documents or information which the Company determines, in good faith, to be confidential and notifies such representatives, Underwriters, counsel or accountants in writing are confidential, shall not be disclosed by the representatives, Underwriters, counsel or accountants unless (i) the release of such records, documents or information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (ii) such records, documents or information have previously been generally made available to the public; -26- (m)(i) within a reasonable time prior to the filing of any Registration Statement, any Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus, provide copies of such document to the Holders of Registrable Securities, to DLJSC or GS or both, as the case may be, and to counsel to such Holders and to the Underwriter or Underwriters of an Underwritten Offering of Registrable Securities, if any; make such reasonable changes in any such document prior to or after the filing thereof as DLJSC or GS or both, as the case may be, or the counsel to the Holders or the Underwriter or the Underwriters may request and not file any such document in a form to which the Majority Holders of any class of Registrable Securities being registered or DLJSC or GS or both, as the case may be, or any Underwriter shall reasonably object; and make such of the representatives of the Company as shall be reasonably requested by the Holders of Registrable Securities being registered or DLJSC or GS or both, as the case may be, or any Underwriter available for discussion of such document; (ii) within a reasonable time prior to the filing of any document which is to be incorporated by reference into a Registration Statement or a Prospectus, provide copies of such document to counsel for the Holders; make such reasonable changes in such document prior to or after the filing thereof as counsel for such Holders, DLJSC, GS, or such Underwriter shall request; and make such of the representatives of the Company as shall be reasonably requested by such counsel available for discussion of such document; (n) use its reasonable best efforts to cause all Registrable Securities of any Class to be listed on any securities exchange on which securities of the Corresponding Class issued by the Company are then listed if so requested by the Majority Holders of such Class of Registrable Securities covered by a Registration Statement, or if so requested by the Underwriter or Underwriters of an Underwritten Offering or Registrable Securities, if any; (o) use its reasonable best efforts to cause all Registrable Securities of any Class (other than Warrants or Common Shares) to be rated with the appropriate rating agencies, if so requested by the Majority Holders of such class of Registrable Securities covered by a Registration Statement, or if so -27- requested by the Underwriter or Underwriters of an Underwritten Offering which includes only Registrable Securities, if any; provided, however, that any fees or charges of such rating agencies shall be paid by the Holders of the Registrable Securities included in the relevant Registration Statement; (p) provide a CUSIP number for all Registrable Securities, not later than the effective date of a Registration Statement; (q) if any Exchange Debt is being registered, cause the indenture for the Exchange Debt to be qualified under the Trust Indenture Act, in connection with the registration of such Exchange Debt; cooperate with the trustee under such indenture and the holders of the Exchange Debt to effect such changes to the indenture as may be required for the indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute, and use its best efforts to cause the trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable such indenture to be so qualified in a timely manner; (r) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and (s) cooperate and assist in any filings required to be made with the NASD and in the performance of any due diligence investigation by any Underwriter (including any "qualified independent underwriter" that is required to be retained in accordance with the rules and regulations of the NASD). Each selling Holder of Registrable Securities as to which any registration is being effected pursuant to this Agreement agrees, as a condition to the registration obligations with respect to such Holder provided herein, to furnish to the Company such information regarding such Holder, the ownership of Registrable Securities by such Holder and the proposed distribution by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing. -28- Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in paragraph (e)(iv) of this Section, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to the affected Registration Statement until such Holder's receipt of the copies of the supplemented or amended Prospectus, contemplated by paragraph (j) of this Section, and, if so directed by the Company, such Holder will deliver to the Company (at the expense of the Company), all copies in its possession, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Registrable Securities which was current at the time of receipt of such notice. Section 5. INDEMNIFICATION; CONTRIBUTION. (a) Indemnification by the Company. The Company agrees to indemnify and hold harmless each Person who participates as an underwriter (any such Person being an "Underwriter"), each Holder and their respective partners, directors, officers and employees and each Person, if any, who controls any Holder or Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment thereto) pursuant to which Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; -29- (ii) against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and (iii) against any and all reasonable expense whatsoever, as incurred (including, subject to the provisions of subsection (c), fees and disbursements of counsel), incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under sub-paragraph (i) or (ii) above; provided, however, that this indemnity agreement does not apply to any Holder or Underwriter with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to the Company by such Holder or Underwriter expressly for use in a Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto) or (B) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented Registration Statement or Prospectus and the Company had furnished copies thereof to the underwriter or selling Holder from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof prior to the date of sale by such underwriter or selling Holder to such Person. (b) Indemnification by Holders, Underwriters, Etc. (i) Each selling Holder severally agrees to indemnify and hold harmless the Company, each -30- Underwriter and the other selling Holders, and each of their respective partners, directors, officers and employees (including each officer of the Company who signed the Registration Statement), and each Person, if any, who controls the Company, any Underwriter or any other selling Holder within the meaning of Section 15 of the Securities Act, against any and all losses, liabilities, claims, damages, judgments and expenses described in the indemnity contained in paragraph (a) of this Section (provided that any settlement of the type described therein is effected with the written consent of such selling Holder), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statement or omissions, made in a Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by such selling Holder expressly for use in such Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto); provided, however, that an indemnifying Holder shall not be required to provide indemnification in any amount in excess of the amount by which (A) the total price at which the Registrable Securities sold by such indemnifying Holder and its affiliated indemnifying Holders and distributed to the public were offered to the public exceeds (B) the amount of any damages which such indemnifying Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. The Company shall be entitled to receive indemnification and contribution from or on behalf of underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution to the same extent as provided above with respect to information so furnished in writing by such Persons specifically for inclusion in any prospectus or registration statement. (c) Conduct of Indemnification Proceedings. Each indemnified party or parties shall give reasonably prompt notice to each indemnifying party or parties of any action or proceeding commenced against it in respect of which indemnity may be sought hereunder, but failure so to notify an indemnifying party or parties shall not relieve it or them from any liability which it or they may have under this indemnity agreement, except to the extent that the indemnifying party is materially prejudiced by such failure to give notice. If -31- the indemnifying party or parties so elects within a reasonable time after receipt of such notice, the indemnifying party or parties may assume the defense of such action or proceeding at such indemnifying party's or parties' expense with counsel chosen by the indemnifying party or parties and approved by the indemnified party defendant in such action or proceeding, which approval shall not be unreasonably withheld; provided, however, that, if such indemnified party or parties reasonably determine that a conflict of interest exists and that therefore it is advisable for such indemnified party or parties to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it or them which are different from or in addition to those available to the indemnifying party, then the indemnifying party or parties shall not be entitled to assume such defense and the indemnified party or parties shall be entitled to separate counsel (limited in each jurisdiction to one counsel for all Underwriters and another counsel for all other indemnified parties under this Agreement) at the indemnifying party's or parties' expense. If an indemnifying party or parties is not so entitled to assume the defense of such action or does not assume such defense, after having received the notice referred to in the first sentence of this paragraph, the indemnifying party or parties will pay the reasonable fees and expenses of counsel for the indemnified party or parties (limited in each jurisdiction to one counsel for all Underwriters and another counsel for all other indemnified parties under this Agreement). In such event, however, no indemnifying party or parties will be liable for any settlement effected without the written consent of such indemnifying party or parties; provided, however, that if at any time an indemnified party or parties shall have requested an indemnifying party or parties to reimburse the indemnified party or parties for fees and expenses of counsel as contemplated by this paragraph, the indemnifying party or parties shall be liable for any settlement of any proceeding effected without the written consent of such indemnifying party or parties if (i) such settlement is entered into more than 15 business days after receipt by such indemnifying party or parties of the aforesaid request accompanied by supporting documents reasonably satisfactory to the indemnifying party or parties and (ii) such indemnifying party or parties shall not have reimbursed the indemnified party or parties in accordance with such request prior to the date of such settlement. If an indemnifying party is entitled to assume, and assumes, the defense of such action -32- or proceeding in accordance with this paragraph, such indemnifying party or parties shall not, except as otherwise provided in this subsection (c), be liable for any fees and expenses of counsel for the indemnified parties incurred thereafter in connection with such action or proceeding. (d) Contribution. (i) In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in this Section is for any reason held to be unenforceable by the indemnified parties although applicable in accordance with its terms in respect of any losses, liabilities, claims, damages, judgments and expenses suffered by an indemnified party referred to therein, each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, liabilities, claims, damages, judgments and expenses in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and of the liable selling Holders (including, in each case, that of their respective officers, directors, employees and agents) on the other in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the liable selling Holders (including, in each case, that of their respective officers, directors, employees and agents) on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or by or on behalf of the selling Holders, on the other, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, liabilities, claims, damages, judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in paragraph (c) of this Section, any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. (ii) The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this paragraph -33- (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in sub-paragraph (i) above. Notwithstanding the provisions of this paragraph (d), in the case of distributions to the public, an indemnifying Holder shall not be required to contribute any amount in excess of the amount by which (A) the total price at which the Registrable Securities sold by such indemnifying Holder and its affiliated indemnifying Holders and distributed to the public were offered to the public exceeds (B) the amount of any damages which such indemnifying Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. (iii) For purposes of this Section, each Person, if any, who controls a Holder or an Underwriter within the meaning of Section 15 of the Securities Act shall have the same rights to contribution as such Holder or Underwriter; and each director of the Company, each officer of the Company who signed the Registration Statement, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, shall have the same rights to contribution as the Company. Section 6. MISCELLANEOUS. (a) No Inconsistent Agreements. The Company has not entered into nor will the Company on or after the date of this Agreement enter into any agreement which is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof. On or prior to the date hereof, the Company has not entered into any other agreement, except for an agreement with Bessemer and members of the BCP Group (as such term is defined in the Stockholders Agreement (as such term is defined in the Subscription Agreement)) and an agreement with the Management Investors made pursuant to the Management Agreements, with respect to its securities granting any registration rights to any Person, and the Company has not entered into, except for an agreement with the Management Investors made pursuant to the Management Agreements (none of which in any event provide for piggy-back -34- registration of securities other than securities of Corresponding Class), and will not on or after the date of this Agreement enter into any, or modify in any manner adverse to the Holders any existing, agreement with any Person granting any piggy-back registration rights with respect to any Registration Statement required to be filed or maintained hereunder; provided, however, that nothing in this sentence shall prohibit the Company from granting registration rights to any Person (including granting piggy-back registration rights with respect to any Registration Statement required to be filed or maintained hereunder) if, any only if, any registration pursuant to such registration rights permits the Holders of Registrable Securities of a Corresponding Class to participate in any such registration on the terms set forth in Section 2(b) and such piggy-back registration rights with respect to any registration required to be effected pursuant hereto relate only to securities of a Corresponding Class to those actually registered in any such registration hereunder, and contain priority in registration provisions no more favorable to the beneficiaries of such piggy-back registration rights who may participate in any registration initiated pursuant to Section 2(a) or in any registration initiated pursuant to Section 2(b) in which Holders may participate than those contained in Section 2(b)(ii) with respect to Holders of Registrable Securities participating in any registration not initiated pursuant to this Agreement. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Company's other issued and outstanding securities under any such agreements. (b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company has obtained the written consent of (w) the Majority Holders of each Class of Registrable Securities affected thereby then outstanding, (x) in the event that the DLJ Trigger has not yet occurred or the DLJ Holders own Warrants and Common Shares amounting to (taking into account all Warrant Shares issuable upon exercise of all Warrants held by the DLJ Holders) at least 5% of the Common Shares outstanding immediately following the Acquisition, of the DLJ Holders, (y) in the event that the GS Trigger has not yet occurred, or the GS Holders own Warrants and Common Shares amounting to -35- (taking into account all Warrant Shares issuable upon exercise of all Warrants held by the GS Holders) at least 5% of the Common Shares outstanding immediately following the Acquisition, of the GS Holders, and, (z) in case of amendments, modifications, supplements, waivers or consents relating to or affecting the provisions of Sections 2(e), 2(f), 4(k), 4(m) or this sentence or otherwise adversely affecting the rights of DLJSC or GS set forth herein, of DLJSC or GS, as the case may be; provided, however, that nothing herein shall prohibit any amendment, modification, supplement or waiver the effect of which is limited only to those Holders who have agreed to such amendment, modification, supplement or waiver. (c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, registered first class mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Company by means of a notice given in accordance with the provisions of this paragraph (c), which address initially is, with respect to each Holder as of the date hereof, the address set forth next to such Holder's name on the signature pages of the Subscription Agreement, and with respect to each Holder who becomes such after the date hereof, the address of such Holder in the stock or warrant records of the Company, and, in the case of any DLJ Holder, with a copy to Wachtell, Lipton, Rosen & Katz, 299 Park Avenue, New York, New York 10171, Attention: Daniel A. Neff, Esq., and, in the case of any GS Holder, with a copy to Fried, Frank, Harris, Shriver & Jacobson, One New York Plaza, New York, New York 10004, Attention: Stuart Z. Katz, Esq. or (ii) if to the Company initially at Bessemer Securities Corporation, 630 Fifth Avenue, New York, New York 10111, Attention: Robert D. Lindsay, and thereafter at such other address, notice of which is given in accordance with the provisions of this paragraph (c), with a copy to Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, 47th Floor, New York, New York 10019, Attention: Alan C. Stephenson, Esq. All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; four Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the next Business Day if timely delivered to a courier guaranteeing overnight delivery. -36- Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the trustee, if any, under the indenture for the Exchange Debt, at the address specified in such indenture. (d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without the need for an express assignment, subsequent Holders; provided, however, that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities except in accordance with the terms of the Subscription Agreement. If any successor, assignee or transferee of any Holder shall acquire Registrable Securities in any manner whether by operation of law or otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and, if such acquisition was effected in accordance with the terms and provisions of the Subscription Agreement, such person shall be entitled to receive the benefits hereof. (e) Recapitalizations, Exchanges, Etc., Affecting Registrable Securities. The provisions of this Agreement shall apply, to the full extent set forth herein with respect to any Class of Registrable Securities, to any and all securities or capital stock of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for, or in substitution of such Class of Registrable Securities, by reason of any dividend, split, issuance, reverse split, combination, recapitalization, reclassification, merger, consolidation or otherwise. Upon the occurrence of any of such events, amounts hereunder shall be appropriately adjusted if necessary. (f) Third Party Beneficiary. DLJSC and GS shall be intended third party beneficiaries to the agreements made hereunder between the Company and the Holders and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights hereunder. -37- (g) Counterparts. This Agreement may be executed in two or more counterparts, each of which, when so executed and delivered, shall be deemed to be an original, but all of which counterparts, taken together, shall constitute one and the same instrument. (h) Descriptive Headings, Etc. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning of terms contained herein. Unless the context of this Agreement otherwise requires: (1) words of any gender shall be deemed to include each other gender; (2) words using the singular or plural number shall also include the plural or singular number, respectively; (3) the words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole (including the Schedules and Exhibits hereto) and not to any particular provision of this Agreement, and Article, Section, paragraph, Exhibit and Schedule references are to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (4) the word "including" and words of similar import when used in this Agreement shall mean "including, without limitation," unless otherwise specified; (5) "or" is not exclusive; and (6) provisions apply to successive events and transactions. (i) Severability. In the event that any one or more of the provisions, paragraphs, words, clauses, phrases or sentences contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision, paragraph, word, clause, phrase or sentence in every other respect and of the other remaining provisions, paragraphs, words, clauses, phrases or sentences hereof shall not be in any way impaired, it being intended that all rights, powers and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law. (j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF). -38- (k) Specific Performance. The parties hereto acknowledge that there would be no adequate remedy at law if any party fails to perform any of its obligations hereunder, and accordingly agree that each party, in addition to any other remedy to which it may be entitled at law or in equity, shall be entitled to compel specific performance of the obligations of any other party under this Agreement in accordance with the terms and conditions of this Agreement in any court of the United States or any State thereof having jurisdiction. Any remedy under this paragraph (j) is subject to certain equitable defenses and to the discretion of the court before which any proceedings therefor may be brought. (l) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, premises, warranties or undertakings, other than those set forth, or referred to herein, with respect to the registration rights granted by the Company with respect to the Registrable Securities sold, directly or indirectly, pursuant to the Subscription Agreement. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. -39- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above. B E ACQUISITION CORPORATION By: /s/ Robert D. Lindsay --------------------------------------------- Name: Title: DLJ MERCHANT BANKING FUNDING, INC. By: /s/ Charles J. Hendrickson --------------------------------------------- Name: Charles J. Hendrickson Title: Director and Treasurer DLJ MERCHANT BANKING PARTNERS, L.P. by DLJ MERCHANT BANKING, INC. its managing general partner By: /s/ Gary B. Appel ------------------------------------------- Name: Gary B. Appel Title: Managing Director DLJ INTERNATIONAL PARTNERS, C.V. by DLJ OFFSHORE MANAGEMENT, N.V., its resident general partner by PIERSON TRUST (CURACAO) N.V., its managing director By: /s/ Vivian-V, Ersilia/Karel Ph. Romer ---------------------------------------- Name: Vivian-V, Ersilia/Karel Ph. Romer Title: Attorneys-in-fact -40- GS CAPITAL PARTNERS, L.P by GS ADVISORS, L.P., its general partner by GS ADVISORS, Inc., its general partner By: /s/ Richard H. Friedman ------------------------------------- Name: Richard H. Friedman Title: President STONE STREET FUND 1992, L.P. by STONE STREET PERFORMANCE CORP., its managing general partner By: /s/ C.H. Skodinski ---------------------------------------- Name: C.H. Skodinski Title: Vice President BRIDGE STREET FUND 1992, L.P. by STONE STREET PERFORMANCE CORP., its general partner By: /s/ C.H. Skodinski ---------------------------------------- Name: C.H. Skodinski Title: Vice President -41- CHEMICAL EQUITY ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP by CHEMICAL VENTURE PARTNERS, its general partner By: /s/ Arnold L. Chaukin ------------------------------------ Name: Arnold L. Chaukin Title: General Partner -42- AMENDMENT NO. 1 dated as of June 5, 1995, to REGISTRATION RIGHTS AGREEMENT dated as of October 9, 1992, among BCP/ESSEX HOLDINGS, INC. (as successor by merger to B E Acquisition Corporation) ("Holdings") and the Persons (other than Holdings) listed on the signature pages hereof (the "Investors"). Holdings and the Investors are parties to a Registration Rights Agreement dated as of October 9, 1992, (the "Registration Rights Agreement"). Holdings and the Investors wish to amend a provision of the Registration Rights Agreement upon the terms and subject to the conditions set forth herein. In consideration of the premises and the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows: Section 1. Definitions. Capitalized terms used but not defined herein have the meanings assigned to them in the Registration Rights Agreement. Section 2. Amendment to Section 1(a) of the Registration Rights Agreement. Section 1(a) of the Registration Rights Agreement is hereby amended by amending the definition of "Registrable Securities" in its entirety to read as follows: '"Registrable Securities" shall mean the Warrants and the Common Shares (but shall not include any Warrant or any Common Share, (i) which has been effectively registered under the Securities Act and disposed of in accordance with a Registration Statement covering such security or (ii) which has been distributed to the public pursuant to Rule 144 under the Securities Act, and, in each such case, the certificate or other evidence of ownership of which does not and is not required to bear any legend previously required by the Subscription Agreement, or any other legend of similar import and is not subject to any stop transfer order).' Section 3. Counterparts. This Amendment No. 1 may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. Section 4. Headings, etc. The headings of the various Sections of this Amendment No. 1 are for convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions hereof. Section 5. Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INTERPRETATION, VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT, REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS. Section 6. Severability. Any provision of this Amendment No. 1 which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed on the date first written above. BCP/ESSEX HOLDINGS, INC. by /s/ David A. Owen Name: David A. Owen Title: Vice President, Treasurer and Chief Financial Officer (Principal Financial Officer) Investors: GS CAPITAL PARTNERS, L.P., by GS ADVISORS, L.P., its general partner, by GS ADVISORS, INC., A its general partner, by /s/ Richard A. Friedman Name: Richard A. Friedman Title: President -2- STONE STREET FUND 1992, L.P. by STONE STREET PERFORMANCE CORP., its general partner by /s/ C.H. Skodinski Name: C.H. Skodinski Title: Vice President BRIDGE STREET FUND 1992, L.P. by STONE STREET PERFORMANCE CORP., its managing general partner by /s/ C.H. Skodinski Name: C.H. Skodinski Title: Vice President DLJ MERCHANT BANKING FUNDING, INC. by /s/ Thomas E. Siegler Name: Thomas E. Siegler Title: Secretary DLJ FIRST ESC L.L.C., by DLJ LBO Plans Management Corporation, by /s/ Thomas E. Siegler Name: Thomas E. Siegler Title: Vice President and Secretary -3- DLJ INTERNATIONAL PARTNERS, C.V. by DLJ MERCHANT BANKING, INC., its advisory general partner by /s/ Thomas E. Siegler Name: Thomas E. Siegler Title: Secretary and Treasurer DLJ MERCHANT BANKING PARTNERS, L.P. by DLJ MERCHANT BANKING, INC., its managing general partner by /s/ Thomas E. Siegler Name: Thomas E. Siegler Title: Secretary and Treasurer CHEMICAL EQUITY ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP by CHEMICAL VENTURE PARTNERS, its general partner by /s/ Bruce J. Reed Name: Title: -4- EX-99.3 4 EXHIBIT 3 - U.S. UNDERWRITING AGREEMENT EXHIBIT 3 Essex International Inc. Common Stock (par value $.01 per share) Underwriting Agreement (U.S. Version) April 17, 1997 Goldman, Sachs & Co., Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation, Lehman Brothers Inc., As representatives of the several Underwriters named in Schedule I hereto, c/o Goldman, Sachs & Co. 85 Broad Street, New York, New York 10004. Ladies and Gentlemen: Essex International Inc., a Delaware corporation (the "Company"), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of 2,400,000 shares of Common Stock, par value $.01 per share ("Stock"), of the Company and the stockholders of the Company named in Schedule II hereto (the "Selling Stockholders") propose, subject to the terms and conditions stated herein, to sell to the Underwriters (a) an aggregate of 1,029,823 shares of Stock and (b) an aggregate of 1,762,805 warrants to purchase shares of Stock and, at the election of the Underwriters, up to (a) 553,427 additional shares of Stock and (b) 205,740 additional warrants to purchase shares of Stock. The aggregate of 3,429,823 shares to be sold by the Company and the Selling Stockholders is herein called the "Firm Shares", the aggregate of 1,762,805 warrants to be sold by certain Selling Stockholders is herein called the "Firm Warrants", the aggregate of 553,427 additional shares to be sold by certain Selling Stockholders is herein called the "Optional Shares" and the aggregate of 205,740 additional warrants to be sold by certain Selling Stockholders is herein called the "Optional Warrants". The Firm Warrants and the Optional Warrants that the Underwriters elect to purchase pursuant to Section 2 hereof are herein collectively called the Warrants, and the Firm Shares, the Optional Shares that the Underwriters elect to purchase pursuant to Section 2 hereof and the shares of Stock to be issued upon the redemption of the Warrants by the Company as hereinafter provided are herein collectively called the "Shares". It is understood and agreed to by all parties that the Company and the Selling Stockholders are concurrently entering into an agreement (the "International Underwriting Agreement") providing for (a) the sale by the Company and certain Selling Stockholders of up to a total of 995,813 shares of Stock and (b) the sale by certain Selling Stockholders of up to a total of 492,136 warrants (the shares of Stock referred to in (a), together with the shares of Stock to be issued upon the redemption of the warrants by the Company, are herein collectively referred to as the "International Shares"), including the overallotment option thereunder, through arrangements with certain underwriters outside the United States (the "International Underwriters"), for whom Goldman Sachs International, Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation and Lehman Brothers International (Europe) are -1- 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 -2- omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein or by a Selling Stockholder expressly for use in the preparation of the answers therein to Items 7 and 11(l) of Form S-1; (iii) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein or by a Selling Stockholder expressly for use in the preparation of the answers therein to Items 7 and 11(l) of Form S-1; (iv) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock (other than changes resulting from the exercise of options outstanding as of the date of this Agreement) or long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus; (v) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries; (vi) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; each "Material Subsidiary" (as hereinafter defined") has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; each Material Subsidiary has been duly qualified as a foreign corporation for the transaction of business and -3- 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 -4- 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: -5- (i) All consents, approvals, authorizations and orders neces- sary for the execution and delivery by such Selling Stockholder of this Agreement, the International Underwriting Agreement, the Power of Attorney and the Custody Agreement hereinafter referred to, and for the sale and delivery of the Shares or Warrants to be sold by such Selling Stockholder hereunder and under the International Underwriting Agreement, have been obtained; and such Selling Stockholder has full right, power and authority to enter into this Agreement, the International Underwriting Agreement, the Power of Attorney and the Custody Agreement and to sell, assign, transfer and deliver the Shares or Warrants to be sold by such Selling Stockholder hereunder and under the International Underwriting Agreement; (ii) The sale of the Shares or Warrants to be sold by such Selling Stockholder hereunder and under the International Underwriting Agreement and the compliance by such Selling Stockholder with all of the provisions of this Agreement, the International Underwriting Agreement, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute or any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound, or to which any of the property or assets of such Selling Stockholder is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of such Selling Stockholder if such Selling Stockholder is a corporation, the Partnership Agreement of such Selling Stockholder if such Selling Stockholder is a partnership, any other constituent documents of such Selling Stockholder or any order to which such Selling Stockholder is bound or any rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property of such Selling Stockholder; (iii) Such Selling Stockholder has, and immediately prior to each Time of Delivery such Selling Stockholder will have, good and valid title to the Shares or Warrants to be sold by such Selling Stockholder hereunder and under the International Underwriting Agreement, free and clear of all liens, encumbrances, equities or claims; and, upon delivery of any such Shares or Warrants and payment therefor pursuant hereto and to the International Underwriting Agreement, good and valid title to such Shares or Warrants, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters or the International Underwriters, as the case may be; (iv) During the period beginning from the date hereof and con- tinuing to and including the date 180 days after the date of the Prospectus, not to offer, sell, contract to sell or otherwise dispose of, including, without limitation, through the entry into a cash-settled derivative instrument, except as provided hereunder or under the International Under- writing Agreement, any shares of Stock, any securities of the Company that are substantially similar to the Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement), without the prior written consent of Goldman, Sachs & Co.; (v) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; -6- (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 -7- 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 -8- bears to the total number of shares of Stock to be received upon redemption of all the Optional Warrants. Any such election to purchase Optional Shares and Optional Warrants may be exercised only by written notice from you to the Attorneys-in-Fact, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares and Optional Warrants to be purchased and the date on which such Optional Shares and Optional Warrants are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 5 hereof) or, unless you and the Attorneys-in-Fact otherwise agree in writing, earlier than one or later than ten business days after the date of such notice. 3. The Company hereby confirms its engagement of Smith Barney Inc. as, and Smith Barney Inc. hereby confirms its agreement with the Company to render services as, a "qualified independent underwriter" within the meaning of Paragraph (b)(15) of Conduct Rule 2720 of the National Association of Securities Dealers, Inc. (the "NASD") with respect to the offering and sale of the Shares. Smith Barney Inc., in its capacity as qualified independent underwriter and not otherwise, is referred to herein as the "QIU". 4. Upon the authorization by you of the release of the Firm Shares (including for this purpose all the shares of Stock to be received upon redemption of the Firm Warrants), the several Underwriters propose to offer the Firm Shares (including for this purpose all the shares of Stock to be received upon redemption of the Firm Warrants) for sale upon the terms and conditions set forth in the Prospectus. 5. (a) The Shares and Warrants to be purchased by each Underwriter hereunder, in definitive form, and in such authorized denominations and registered in such names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior notice to the Company and the Selling Stockholders shall be delivered by or on behalf of the Company and the Selling Stockholders to Goldman, Sachs & Co., for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by certified or official bank check or checks or by wire transfer, payable to the order of the Company and the Custodian in Federal Funds (same day). The delivery of the Shares to Goldman, Sachs & Co. pursuant to the prior sentence may be made, at the option of Goldman, Sachs & Co., through the facilities of The Depository Trust Company ("DTC"). The Company will cause the certificates representing the Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, or at the office of DTC or its designated custodian, as the case may be (the "Designated Office"). The time and date of such delivery and payment shall be, with respect to the Firm Shares and the Firm Warrants, 9:30 a.m., New York City time, on April 23, 1997 or such other time and date as Goldman, Sachs & Co. and the Company may agree upon in writing, and, with respect to the Optional Shares and the Optional Warrants, 9:30 a.m., New York City time, on the date specified by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the Underwriters' election to purchase such Optional Shares and the Optional Warrants, or such other time and date as Goldman, Sachs & Co. and the Attorneys-in-Fact may agree upon in writing. Such time and date for delivery of the Firm Shares and the Firm Warrants is herein called the "First Time of Delivery", such time and date for delivery of the Optional Shares and the Optional Warrants, if not the First Time of Delivery, is herein called the "Second Time of Delivery", and each such time and date for delivery is herein called a "Time of Delivery". (b) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross-receipt for the Shares and the Warrants and any additional documents requested by the Underwriters pursuant to Section 8(l) hereof will be delivered at the offices of Sullivan & Cromwell, 125 Broad Street, New York, New York 10004 (the -9- "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 -10- Prospectus in order to comply with the Act, to notify you and upon your request to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required to deliver a prospectus in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act; (d) To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158); (e) During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus, not to offer, sell, contract to sell or otherwise dispose of, including, without limitation, through the entry into a cash-settled derivative instrument, except as provided hereunder and under the International Underwriting Agreement, any shares of Stock, any securities of the Company that are substantially similar to the Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than (i) pursuant to acquisitions or other business transactions where the Company uses shares of Stock as all or a portion of the consideration for the transactions provided that if the aggregate number of shares of Stock issued in any such acquisitions or transactions exceeds 1.3 million, or if the number of shares of Stock issued in any acquisition or transaction, together with the number of shares of Stock issued in any other acquisitions or transactions after the date of this Agreement exceeds 1.3 million, the Company shall cause the person or persons acquiring such shares of Stock to comply with this Section 6(e), or (ii) pursuant to employee stock option plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior written consent of Goldman, Sachs & Co.; and to enforce its rights under Section 6.04 of the Management Stockholders Agreement and Section 3(a) of the Registration Rights Agreement (each as defined in the Prospectus), to use its reasonable best efforts to cause each other party to such agreements to comply therewith and not to grant any waivers or consents to non-compliance with such agreements insofar as such agreements relate to registration under the Act, in each case unless and to the extent that it shall have obtained the prior written consent of Goldman, Sachs & Co.; (f) To furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; (g) During a period of three years from the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) -11- 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 -12- obligations hereunder (other than underwriting commissions and discounts). In connection with Clause (ix) of the preceding sentence, Goldman, Sachs & Co. agrees to pay New York State stock transfer tax, and the Company agrees to reimburse Goldman, Sachs & Co. for associated carrying costs if such tax payment is not rebated on the day of payment and for any portion of such tax payment not rebated. It is understood, however, that the Company shall bear, and the Selling Stockholders shall not be required to pay or to reimburse the Company for, the cost of any other matters not directly relating to the sale and purchase of the Shares pursuant to this Agreement, and that, except as provided in this Section, and Sections 9 and 13 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make. 8. The obligations of the Underwriters hereunder, as to the Shares and the Warrants to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 6(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; (b) Sullivan & Cromwell, counsel for the Underwriters, shall have furnished to you such opinion or opinions, dated such Time of Delivery, with respect to the matters covered in paragraphs (i), (ii) and (vii) of subsection (c) below and the final paragraph of subsection (d) below as well as such other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; (c) Debra F. Minott, General Counsel for the Company, shall have furnished to you her written opinion (a draft of such opinion is attached as Annex II(a) hereto), dated such Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; (ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectus; -13- (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 & Moore, counsel for the Company, shall have furnished to you their written opinion (a draft of such opinion is attached as Annex II(b) hereto), dated such Time of Delivery, in form and substance satisfactory to you, to the effect of paragraphs (i) (except indicating current due incorporation), (ii) (excluding the validity of any Shares not being delivered at such Time of Delivery) and (viii) of subsection (c) of this Section 8, and to the effect that; (i) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body referred to in clause (ix) of Section 8(c) is required for the issue and sale of the Shares or the Warrants or the consummation by the Company of the transactions contemplated by this Agreement and the International Underwriting Agreement, except the registration under the Act of the Shares, the registration of the Stock under the Exchange Act and the listing of the Shares on the Exchange, each of which has been made or obtained; and the issue -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., Steven R. Abbott, Robert J. Faucher, Dominic A. Lucenta, Charles W. McGregor, Debra F. Minott, Curtis A. Norton, David A. Owen and Gregory R. Schriefer to the effect set forth in Subsection 1(b)(iv) hereof in form and substance satisfactory to you; (l) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling -18- Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and as to such other matters as you may reasonably request, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) and (g) of this Section, and as to such other matters as you may reasonably request; (m) The Company shall have complied with the provisions of Section 6(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; (n) The Company shall have complied with the provisions of Section 6(l) with respect to the redemption of the Warrants to be sold at such Time of Delivery for shares of Stock; and (o) The Stock Split, the Reclassification and the amendment and restatement of the Essex Revolving Credit Agreement as the Restated Credit Agreement, each as described in the Prospectus, shall have been consummated as described in the Prospectus; and the Termination, Amendment and Approval Agreement, dated as of April 1, 1997, shall have been duly authorized, executed and delivered by the parties thereto and shall have become effective. 9. (a) The Company and Essex, jointly and severally, will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company and Essex shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Goldman, Sachs & Co. expressly for use therein. (b) Each of the Selling Stockholders, severally and not jointly, will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein; and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, -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 Goldman, Sachs & Co. expressly for use therein. (c) Each Underwriter will indemnify and hold harmless the Company and each Selling Stockholder against any losses, claims, damages or liabilities to which the Company or such Selling Stockholder may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Underwriter through Goldman, Sachs & Co. expressly for use therein; and will reimburse the Company and each Selling Stockholder for any legal or other expenses reasonably incurred by the Company or such Selling Stockholder in connection with investigating or defending any such action or claim as such expenses are incurred. (d) Promptly after receipt by an indemnified party under subsection (a), (b), or (c) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (which shall not, except with the consent of the indemnified party, be counsel to the indemnifying party and, if the Company or Essex is an indemnifying party, counsel to the Company or Essex), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. (e) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate -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 -21- as set forth in the Prospectus and (ii) the product of the number of Warrants sold by such Selling Stockholder, including any Optional Warrants, to the Underwriters and the purchase price per Warrant set forth in Section 2(b). 10. (a) The Company and Essex, jointly and severally, will indemnify and hold harmless Smith Barney Inc., in its capacity as QIU, against any losses, claims, damages or liabilities, joint or several, to which the QIU may become subject, under the Act of otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the QIU for any legal or other expenses reasonably incurred by the QIU in connection with investigating or defending any such action or claim as such expenses are incurred. (b) Promptly after receipt by the QIU under subsection (a) above of notice of the commencement of any action, the QIU shall, if a claim in respect thereof is to be made against the Company and Essex under such subsection, notify the Company and Essex in writing of the commencement thereof; but the omission so to notify the Company and Essex shall not relieve them from any liability which they may have to the QIU otherwise than under such subsection. In case any such action shall be brought against the QIU and it shall notify the Company and Essex of the commencement thereof, the Company and Essex shall be entitled to participate therein and, to the extent that they shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to the QIU (who shall not, except with the consent of the QIU, be counsel to the Company or Essex), and, after notice from the indemnifying party to the QIU of its election so to assume the defense thereof, the indemnifying party shall not be liable to the QIU under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the QIU, in connection with the defense thereof other than reasonable costs of investigation. Neither of the Company or Essex shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the QIU is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the QIU from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of the QIU. (c) If the indemnification provided for in this Section 10 is unavailable to or insufficient to hold harmless Smith Barney Inc., in its capacity as QIU, under subsection (a) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then the Company and Essex shall contribute to the amount paid or payable by the QIU as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and Essex on the one hand and the QIU on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the QIU failed to give the notice required under subsection (b) above, then the Company and Essex shall contribute to such amount paid or payable by the QIU in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and Essex on the one hand and the QIU on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and Essex on the one hand and the QIU on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting -22- 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 Goldman, Sachs & Co. on behalf of you as the representatives; and in all dealings with any Selling Stockholder hereunder, you and the Company shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of such Selling Stockholder made or given by any or all of the Attorneys-in-Fact for such Selling Stockholder. All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the representatives in care of Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, Attention: Registration Department; if to any Selling Stockholder shall be delivered or sent by mail, telex or facsimile transmission to counsel for such Selling Stockholder at its address set forth in Schedule II hereto; and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 9(d) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters' Questionnaire or telex constituting such Questionnaire, which address will be -24- 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/ Debra F. Minott Name: Debra F. Minott Title: Senior Vice President, General Counsel and Secretary Essex Group, Inc. By: /s/ Debra F. Minott Name: Debra F. Minott Title: Senior Vice President, General Counsel and Secretary GS Capital Partners, L.P. Stone Street Fund 1992, L.P. Bridge Street Fund 1992, L.P. By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: Attorney-in-Fact DLJ International Partners, C.V. DLJ Merchant Banking Partners, L.P. DLJ Merchant Banking Funding, Inc. DLJ First ESC LLC By: /s/ Claire M. Power Name: Claire M. Power Title: Assistant Secretary -26- Chase Equity Associates By: /s/ Brian J. Richmand Name: Brian J. Richmand Title: Attorney-in-Fact John L. Cox Stanley C. Craft David O. McMahan Frederick M. Zinser By: /s/ Debra F. Minott Name: Debra F. Minott Attorney-in-Fact Accepted as of the date hereof: Goldman, Sachs & Co. Smith Barney Inc. Donaldson, Lufkin & Jenrette Securities Corporation Lehman Brothers Inc. By: /s/ Goldman, Sachs & Co. (Goldman, Sachs & Co.) On behalf of each of the Underwriters -27- 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 Goldman, Sachs & Co.......................... 857,643 440,797 138,387 51,446 Smith Barney Inc............................. 857,643 440,797 138,387 51,446 Donaldson, Lufkin & Jenrette Securities Corporation...................... 514,473 264,421 83,014 30,861 Lehman Brothers Inc.......................... 514,473 264,421 83,014 30,861 Chase Securities Inc......................... 54,803 28,167 8,843 3,287 Cleary Gull Relland & McDevitt Inc........... 30,197 15,520 4,873 1,811 A.G. Edwards & Sons, Inc..................... 54,803 28,167 8,843 3,287 EVEREN Securities, Inc....................... 54,803 28,167 8,843 3,287 Furman Selz LLC.............................. 30,197 15,520 4,873 1,811 Interstate/Johnson Lane Corporation.......... 30,197 15,520 4,873 1,811 Edward D. Jones & Co., L.P................... 30,197 15,520 4,873 1,811 McDonald & Company Securities, Inc........... 30,197 15,520 4,873 1,811 Merrill Lynch, Pierce, Fenner & Smith Incorporated....................... 54,803 28,167 8,843 3,287 NatCity Investments, Inc..................... 30,197 15,520 4,873 1,811 Oppenheimer & Co., Inc....................... 54,803 28,167 8,843 3,287 Principal Financial Securities, Inc.......... 30,197 15,520 4,873 1,811 Prudential Securities Incorporated........... 54,803 28,167 8,843 3,287 Rauscher Pierce Refsnes, Inc................. 30,197 15,520 4,873 1,811 Roney & Co., L.L.C........................... 30,197 15,520 4,873 1,811 Schroder Wertheim & Co. Incorporated......... 54,803 28,167 8,843 3,287 Stifel, Nicolaus & Company, Incorporated..... 30,197 15,520 4,873 1,811 --------- ---------- ---------- --------- Total............................... 3,429,823 1,762,805 553,427 205,740 ========= ========== ========== =========
-28- 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 Stone Street Fund 1992, L.P.(a).......... 622 13,984 4,284 0 Bridge Street Fund 1992, L.P.(a)......... 375 8,426 2,581 0 DLJ International Partners, C.V.(b)...... 521,566 0 123,859 0 DLJ Merchant Banking Partners, L.P.(c)... 0 476,696 0 113,204 DLJ Merchant Banking Funding, Inc.(c).... 0 231,595 0 54,998 DLJ First ESC LLC(c)..................... 0 158,073 0 37,538 Chase Equity Associates(d).............. 302,074 0 104,737 0 John L. Cox(e)........................... 20,000 0 0 0 Stanley C. Craft(e)...................... 60,000 0 0 0 David O. McMahan(e)...................... 14,996 0 0 0 Frederick M. Zinser(e)................... 64,000 0 0 0 ----------- ----------- ---------- ---------- Total............................. 3,429,823 1,762,805 553,426 205,740 =========== =========== ========== ========== (a) This Selling Stockholder is represented by David J. Greenwald, 85 Broad Street, New York, NY 10004 and has appointed Richard A. Friedman and Joseph H. Gleberman, and each of them, as the Attorneys-in-Fact for such Selling Stockholder. (b) This Selling Stockholder is represented by Michael A. Boyd, 277 Park Avenue, New York, NY and DeBrauw Blackstone Westbroik, 712 Fifth Avenue, New York, NY 10019 and has appointed Ivy B. Dodes and Nichole Arnaboldi, and each of them, as the Attorneys-in-Fact for such Selling Stockholder. (c) This Selling Stockholder is represented by Michael A. Boyd, 277 Park Avenue, New York, NY 10172 and has appointed Ivy Dodes and Nichole Arnaboldi, and each of them, as the Attorneys-in-Fact for such Selling Stockholder. (d) This Selling Stockholder is represented by White & Case, 1155 Avenue of the Americas, New York, NY 10036 and has appointed Brian J. Richmand and John M.B. O'Connor, and each of them, as Attorneys-in- Fact for such Selling Stockholder. (e) This Selling Stockholder has appointed Steven R. Abbott, David A. Owen and Debra F. Minott, and each of them, as the Attorneys-in-Fact for such Selling Stockholder.
-29- EX-99.4 5 EXHIBIT 4 - INTERNATIONAL UNDERWRITING AGREEMENT EXHIBIT 4 Essex International Inc. Common Stock (par value of $.01 per share) Underwriting Agreement (International Version) April 17, 1997 Goldman Sachs International, Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation, Lehman Brothers International (Europe), As representatives of the several Underwriters named in Schedule I hereto, c/o Goldman Sachs International, Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. Ladies and Gentlemen: Essex International Inc., a Delaware corporation (the "Company"), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of 600,000 shares of Common Stock, par value $.01 per share ("Stock"), of the Company and the stockholders of the Company named in Schedule II hereto (the "Selling Stockholders") propose, subject to the terms and conditions stated herein, to sell to the Underwriters (a) an aggregate of 257,456 shares of Stock and (b) an aggregate of 440,701 warrants to purchase shares of Stock and, at the election of the Underwriters, up to (a) 138,357 additional shares of Stock and (b) 51,435 additional warrants to purchase shares of Stock. The aggregate of 857,456 shares to be sold by the Company and the Selling Stockholders is herein called the "Firm Shares", the aggregate of 440,701 warrants to be sold by certain Selling Stockholders is herein called the "Firm Warrants", the aggregate of 138,357 additional shares to be sold by certain Selling Stockholders is herein called the "Optional Shares" and the aggregate of 51,435 additional warrants to be sold by certain Selling Stockholders is herein called the "Optional Warrants". The Firm Warrants and the Optional Warrants that the Underwriters elect to purchase pursuant to Section 2 hereof are herein collectively called the Warrants, and the Firm Shares, the Optional Shares that the Underwriters elect to purchase pursuant to Section 2 hereof and the shares of Stock to be issued upon redemption of the Warrants by the Company as hereinafter provided are herein collectively called the "Shares". It is understood and agreed to by all parties that the Company and the Selling Stockholders are concurrently entering into an agreement, a copy of which is attached hereto (the "U.S. Underwriting Agreement"), providing for (a) the sale by the Company and certain Selling Stockholders of up to a total of 3,983,250 shares of Stock and (b) the sale by certain Selling Stockholders of up to a total of 1,968,545 warrants (the shares of Stock referred to in (a), together with the Shares of Stock to be issued upon redemption of the warrants by the Company, are herein collectively referred to as the "U.S. Shares"), including the overallotment option thereunder, through arrangements with certain underwriters in the United States (the "U.S. Underwriters"), for whom Goldman, Sachs & Co., Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation and Lehman Brothers Inc. are acting - 1 - as representatives. Anything herein or therein to the contrary notwithstanding, the respective closings under this Agreement and the U.S. Underwriting Agreement are hereby expressly made conditional on one another. The Underwriters hereunder and the U.S. Underwriters are simultaneously entering into an Agreement between U.S. and International Underwriting Syndicates (the "Agreement between Syndicates") which provides, among other things, for the transfer of shares of Stock between the two syndicates and for consultation by Goldman Sachs International, Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation and Lehman Brothers International (Europe), the Lead Managers hereunder, with Goldman, Sachs & Co. prior to exercising the rights of the Underwriters under Sec tion 7 hereof. Two forms of prospectus are to be used in connection with the offering and sale of shares of Stock contemplated by the foregoing, one relating to the Shares hereunder and the other relating to the U.S. Shares. The latter form of prospectus will be identical to the former except for certain substitute pages. Except as used in Sections 2, 3, 4, 9 and 11 herein, and except as context may otherwise require, references hereinafter to the Shares shall include all of the shares of Stock which may be sold pursuant to either this Agreement or the U.S. Underwriting Agreement, including any shares of Stock to be issued by the Company upon the redemption of the Warrants, references hereinafter to the Warrants shall include all the warrants which may be sold pursuant to either this Agreement or the U.S. Underwriting Agreement and references herein to any prospectus, whether in preliminary or final form, and whether as amended or supplemented, shall include both the U.S. and the international versions thereof. In addition, this Agreement incorporates by reference certain provisions from the U.S. Underwriting Agreement (including the related definitions of terms, which are also used elsewhere herein) and, for purposes of applying the same, references (whether in these precise words or their equivalent) in the incorporated provisions to the "Underwriters" shall be to the Underwriters hereunder, to the "Shares" shall be to the Shares hereunder as just defined, to the "Warrants" shall be to the Warrants hereunder as just defined, to "this Agreement" (meaning therein the U.S. Underwriting Agreement) shall be to this Agreement (except where this Agreement is already referred to or as the context may otherwise require) and to the representatives of the Underwriters or to Goldman, Sachs & Co. shall be to the addressees of this Agreement and to Goldman Sachs International ("GSI"), and, in general, all such provisions and defined terms shall be applied mutatis mutandis as if the incorporated provisions were set forth in full herein having regard to their context in this Agreement as opposed to the U.S. Underwriting Agreement. 1. The Company and each of the several Selling Stockholders hereby make to the Underwriters the same respective representations, warranties and agreements as are set forth in Section 1 of the U.S. Underwriting Agreement, which Section is incorporated herein by this reference. 2. Subject to the terms and conditions herein set forth, (a) the Company and each of the Selling Stockholders agree, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and each of the Selling Stockholders, at a purchase price per share of $15.98, the number of Firm Shares (to be adjusted by you so as to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of the Selling Stockholders as set forth opposite their respective names in Schedule II hereto by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all the Underwriters from the Company and all the Selling Stockholders hereunder, (b) certain Selling Stockholders agree, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from such Selling Stockholders, at a purchase price of $10.6077684 per Warrant, the number of Firm Warrants (to be adjusted by you so as to eliminate the redemption of a Warrant for a fractional share) determined by multiplying the - 2 - aggregate number of Firm Warrants to be sold by such Selling Stockholders as set forth opposite their respective names in Schedule II hereto by a fraction, the numerator of which is the aggregate number of Firm Warrants to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of all Firm Warrants to be purchased by all the Underwriters from such Selling Stockholders and (c) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Shares and Optional Warrants as provided below, each of the Selling Stockholders agrees, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from each of the Selling Stockholders, at the purchase price per share set forth in clause (a) of this Section 2 or at the purchase price per Warrant set forth in clause (b) of this Section 2, that portion of the number of Optional Shares and Optional Warrants as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares and the redemption of a Warrant for a fractional share) determined (i) in the case of Optional Shares, by multiplying such number of Optional Shares by a fraction the numerator of which is the maximum number of Optional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Shares that all of the Underwriters are entitled to purchase hereunder and (ii) in the case of Optional Warrants, by multiplying such number of Optional Warrants by a fraction the numerator of which is the maximum number of Optional Warrants which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Warrants that all of the Underwriters are entitled to purchase hereunder. Each of the Selling Stockholders, as and to the extent indicated in Schedule II hereto, hereby grant, severally and not jointly, to the Underwriters the right to purchase at their election up to 138,357 Optional Shares and up to 51,435 Optional Warrants, at the purchase price per share or per Warrant set forth in the paragraph above, for the sole purpose of covering overallotments in the sale of the Firm Shares (including for this purpose all of the shares of Stock to be received upon redemption of the Firm Warrants). Any such election to purchase Optional Shares shall be made in proportion to the maximum number of Optional Shares to be sold by each Selling Stockholder as set forth in Schedule II hereto, it being understood that for the purpose of this calculation the Optional Warrants shall be treated as if they had been redeemed for shares of Stock and that the Optional Shares and the Optional Warrants shall be purchased in the same proportion as the total number of Optional Shares bears to the total number of shares of Stock to be received upon redemption of all the Optional Warrants. Any such election to purchase Optional Shares and Optional Warrants may be exercised only by written notice from you to the Attorneys-in-Fact, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares and Optional Warrants to be purchased and the date on which such Optional Shares and Optional Warrants are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 4 hereof) or, unless you and the Attorneys-in-Fact otherwise agree in writing, earlier than one or later than ten business days after the date of such notice. 3. Upon the authorization by GSI of the release of the Firm Shares (including for this purpose all the shares of Stock to be received upon redemption of the Firm Warrants), the several Underwriters propose to offer the Firm Shares (including for this purpose all the shares of Stock to be received upon redemption of the Firm Warrants) for sale upon the terms and conditions set forth in the Prospectus and in the forms of Agreement among Underwriters (International Version) and Selling Agreements, which have been previously submitted to the Company by you. Each Underwriter hereby makes to and with the Company and the Selling Stockholders the representations and agreements of such Underwriter as a member of the selling group contained in Sections 3(d) and 3(e) of the form of Selling Agreements. - 3 - 4. (a) The Shares and Warrants to be purchased by each Underwriter hereunder, in definitive form, and in such authorized denominations and registered in such names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior notice to the Company and the Selling Stockholders shall be delivered by or on behalf of the Company and the Selling Stockholders to Goldman, Sachs & Co., for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by certified or official bank check or checks or by wire transfer, payable to the order of the Company and the Custodian in Federal Funds (same day). The delivery of the Shares to Goldman, Sachs & Co. pursuant to the prior sentence may be made, at the option of Goldman, Sachs & Co., through the facilities of The Depository Trust Company ("DTC"). The Company will cause the certificates representing the Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, or at the office of DTC or its designated custodian, as the case may be (the "Designated Office"). The time and date of such delivery and payment shall be, with respect to the Firm Shares and the Firm Warrants, 9:30 a.m., New York City time, on April 23, 1997 or such other time and date as Goldman, Sachs & Co. and the Company may agree upon in writing, and, with respect to the Optional Shares and the Optional Warrants, 9:30 a.m., New York time, on the date specified by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the Underwriters' election to purchase such Optional Shares and the Optional Warrants, or such other time and date as Goldman, Sachs & Co. and the Attorneys-in-Fact may agree upon in writing. Such time and date for delivery of the Firm Shares and the Firm Warrants is herein called the "First Time of Delivery", such time and date for delivery of the Optional Shares and the Optional Warrants, if not the First Time of Delivery, is herein called the "Second Time of Delivery", and each such time and date for delivery is herein called a "Time of Delivery". (b) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 of the U.S. Underwriting Agreement, including the cross-receipt for the Shares and the Warrants and any additional documents requested by the Underwriters pursuant to Section 8(l) of the U.S. Underwriting Agreement will be delivered at the offices of Sullivan & Cromwell, 125 Broad Street, New York, New York 10004 (the "Closing Location"), and the Shares will be delivered at the Designated Office, all at each Time of Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New York City time, on the New York Business Day next preceding each Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close. 5. The Company hereby makes with the Underwriters the same agreements as are set forth in Section 6 of the U.S. Underwriting Agreement, which Section is incorporated herein by this reference. 6. The Company, each of the Selling Stockholders, and the Underwriters hereby agree with respect to certain expenses on the same terms as are set forth in Section 7 of the U.S. Underwriting Agreement, which Section is incorporated herein by this reference. 7. Subject to the provisions of the Agreement between Syndicates, the obligations of the Underwriters hereunder shall be subject, in their discretion, at each Time of Delivery to the condition that all representations and warranties and other statements of the Company, and the Selling Stock holders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of their respective obligations hereunder - 4 - theretofore to be performed, and additional conditions identical to those set forth in Section 8 of the U.S. Underwriting Agreement, which Section is incorporated herein by this reference. 8. (a) The Company and Essex Group, Inc. ("Essex"), jointly and severally, will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company and Essex shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through GSI expressly for use therein. (b) Each of the Selling Stockholders, severally and not jointly, will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein; and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that such Selling Stockholder shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through GSI expressly for use therein. (c) Each Underwriter will indemnify and hold harmless the Company and each Selling Stockholder against any losses, claims, damages or liabilities to which the Company or such Selling Stockholder may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by - 5 - such Underwriter through GSI expressly for use therein; and will reimburse the Company and each Selling Stockholder for any legal or other expenses reasonably incurred by the Company or such Selling Stockholder in connection with investigating or defending any such action or claim as such expenses are incurred. (d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party and, if the Company or Essex is an indemnifying party, counsel to the Company or Essex), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. (e) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a),(b) or (c) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company, Essex and the Selling Stockholders on the one hand and the Underwriters on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (d) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropri ate to reflect not only such relative benefits but also the relative fault of the Company, Essex and the Selling Stockholders on the one hand and the Underwriters on the other in connection with the state ments or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, Essex and the Selling Stockholders on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering of the Shares purchased under this Agreement (before deducting expenses) received by the Company, Essex and the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Shares purchased under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, Essex or the Selling Stockholders on the one hand or the Underwriters on the other and the parties' relative - 6 - intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, Essex, each of the Selling Stockholders and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (e) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in con nection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (e), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this subsection (e) to contribute are several in proportion to their respective underwriting obligations and not joint. (f) The obligations of the Company, Essex and the Selling Stockholders under this Section 8 shall be in addition to any liability which the Company, Essex and the respective Selling Stockholders may otherwise have, including, without limitation, under the Registration Rights Agreement and the Management Stockholders Agreement, and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company) and to each person, if any, who controls the Company or any Selling Stockholder within the meaning of the Act. (g) Notwithstanding the other provisions of this Section 8, the liability or required contribution of any Selling Stockholder pursuant to this Section 8 shall not exceed the sum of (i) the product of the number of Shares (excluding any shares of Stock underlying the Warrants) sold by such Selling Stockholder, including any Optional Shares, and the initial public offering price of the Shares as set forth in the Prospectus and (ii) the product of the number of Warrants sold by such Selling Stockholder, including any Optional Warrants, to the Underwriters and the purchase price per Warrant set forth in Section 2(b). 9. (a) If any Underwriter shall default in its obligation to purchase the Shares which it has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or another party or other parties to purchase such Shares on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such Shares, then the Company and the Selling Stockholders shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Shares on such terms. In the event that, within the respective prescribed periods, you notify the Company and the Selling Stockholders that you have so arranged for the purchase of such Shares, or the Company and the Selling Stockholders notify you that they have so arranged for the purchase of such Shares, you or the Company and the Selling Stockholders shall have the right to postpone such Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term - 7 - "Underwriter" as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Shares. (b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Company and the Selling Stockholders as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, then the Company and the Selling Stockholders shall have the right to require each non-defaulting Underwriter to purchase the number of shares which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Company and the Selling Stockholders as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, or if the Company and the Selling Stockholders shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect to the Second Time of Delivery, the obligations of the Underwriters to purchase and of the Company and the Selling Stockholders to sell the Optional Shares) shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company or the Selling Stockholders, except for the expenses to be borne by the Company and the Selling Stockholders and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (d) For the purposes of clarity, all references in this Section 9 to the Shares shall be deemed to refer to and include the shares of Stock underlying any Warrants to be purchased. 10. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Selling Stockholders and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company or any of the Selling Stockholders, or any officer or director or controlling person of the Company or any controlling person of any Selling Stockholders, and shall survive delivery of and payment for the Shares. 11. If this Agreement shall be terminated pursuant to Section 9 hereof, neither the Company nor the Selling Stockholders shall then be under any liability to any Underwriter except as provided in Section 6 and Section 8 hereof; but, if for any other reason, any Shares or Warrants are not delivered by or on behalf of the Company and the Selling Stockholders as provided herein, the Company will reimburse the Underwriters through GSI for all out-of-pocket expenses approved in writing by GSI, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares and Warrants not so delivered, but the Company and the Selling Stockholders shall then be under no further liability to any Underwriter in respect of the Shares and Warrants not so delivered except as provided in Sections 6 and 8 hereof. - 8 - 12. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you jointly or by GSI on behalf of you as the representatives of the Underwriters; and in all dealings with any Selling Stockholder hereunder, you and the Company shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of such Selling Stockholder made or given by any or all of the Attorneys-in-Fact for such Selling Stockholder. All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the Underwriters in care of GSI, Peterborough Court, 133 Fleet Street, London EC4A 2BB, England, Attention: Equity Capital Markets, Telex No. 94012165, facsimile transmission No. (071) 774-1550; if to any Selling Stockholder shall be delivered or sent by mail, telex or facsimile transmission to counsel for such Selling Stockholder at its address set forth in Schedule II hereto; and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters' Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company or the Selling Stockholders by GSI upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof. 13. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company, Essex and the Selling Stockholders and, to the extent provided in Sections 8 and 10 hereof, the officers and directors of the Company and each person who controls the Company, any Selling Stockholder or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 14. Time shall be of the essence of this Agreement. 15. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America. 16. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. If the foregoing is in accordance with your understanding, please sign and return to us 7 counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters, the Company and each of the Selling Stockholders. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters (International Version), the form of which shall be furnished to the Company and the Selling Stockholders for examination upon request, but without warranty on your part as to the authority of the signers thereof. - 9 - Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling Stockholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and binding Power of Attorney which authorizes such Attorney-in-Fact to take such action. Very truly yours, Essex International Inc. By: /s/ Debra F. Minott Name: Debra F. Minott Title: Senior Vice President, General Counsel and Secretary Essex Group, Inc. By: /s/ Debra F. Minott Name: Debra F. Minott Title: Senior Vice President, General Counsel and Secretary GS Capital Partners, L.P. Stone Street Fund 1992, L.P. Bridge Street Fund 1992, L.P. By: /s/ Richard A. Friedman Name: Richard A. Friedman Title: Attorney-in-Fact DLJ International Partners, C.V. DLJ Merchant Banking Partners, L.P. DLJ Merchant Banking Funding, Inc. DLJ First ESC LLC By: /s/ Claire M. Power Name: Claire M. Power Title: Assistant Secretary - 10 - Chase Equity Associates By: /s/ Brian J. Richmand Name: Brian J. Richmand Title: Attorney-in-Fact John L. Cox Stanley C. Craft David O. McMahan Frederick M. Zinser By: /s/ Debra F. Minott Name: Debra F. Minott Attorney-in-Fact Accepted as of the date hereof: Goldman Sachs International Smith Barney Inc. Donaldson, Lufkin & Jenrette Securities Corporation Lehman Brothers International (Europe) By: Goldman Sachs International By: /s/ Steven C. Fletcher (Attorney-in-Fact) On behalf of each of the Underwriters - 11 - SCHEDULE I
Number of Number of Optional Total Number Optional Shares Warrants to be Total Number of of Firm to be Purchased Purchased if Firm Shares to Warrants to be if Maximum Maximum Option Underwriter be Purchased Purchased Option Exercised Exercised Goldman Sachs International....... 274,386 141,025 44,275 16,460 Smith Barney Inc.................. 274,386 141,024 44,274 16,459 Donaldson, Lufkin & Jenrette Securities Corporation........... 154,342 79,326 24,904 9,258 Lehman Brothers International (Europe).......................... 154,342 79,326 24,904 9,258 ----------- ----------- ----------- ----------- Total........... 857,456 440,701 138,357 51,435 =========== =========== =========== ===========
- 12 - SCHEDULE II
Number of Number of Optional Shares to Optional Total Number Total Number of be Sold if Warrants to be of Firm Shares Firm Warrants Maximum Option Sold if Maximum to be sold to be Sold Exercised Option Exercised The Company.............................. 600,000 0 0 0 The Selling Stockholders: GS Capital Partners, L.P.(a)........... 11,547 218,507 79,492 0 Stone Street Fund 1992, L.P.(a)........ 156 3,496 1,071 0 Bridge Street Fund 1992, L.P.(a)....... 94 2,107 645 0 DLJ International Partners, C.V.(b).... 130,391 0 30,965 0 DLJ Merchant Banking Partners, L.P.(c).......................... 0 119,174 0 28,301 DLJ Merchant Banking Funding, Inc.(c)......................... 0 57,899 0 13,749 DLJ First ESC LLC(c)................... 0 39,518 0 9,385 Chase Equity Associates(d)............ 75,519 0 26,184 0 John L. Cox(e)......................... 5,000 0 0 0 Stanley C. Craft(e).................... 15,000 0 0 0 David O. McMahan(e).................... 3,749 0 0 0 Frederick M. Zinser(e)................. 16,000 0 0 0 ------- ------- ------- ------- Total........................... 857,456 440,701 138,357 51,435 ======= ======= ======= ======= (a) This Selling Stockholder is represented by David J. Greenwald, 85 Broad Street, New York, NY 10004 and has appointed Richard A. Friedman and Joseph H. Gleberman, and each of them, as the Attorneys-in-Fact for such Selling Stockholder. (b) This Selling Stockholder is represented by Michael A. Boyd, 277 Park Avenue, New York, NY 10172 and De Brauw Blackstone Westbroek, 712 Fifth Avenue, New York, NY 10019 and has appointed Ivy B. Dodes and Nichole Arnaboldi, and each of them, as the Attorneys-in-Fact for such Selling Stockholder. (c) This Selling Stockholder is represented by Michael A. Boyd, 277 Park Avenue, New York, NY 10172 and has appointed Ivy Dodes and Nichole Arnaboldi, and each of them, as the Attorneys-in-Fact for such Selling Stockholder. (d) This Selling Stockholder is represented by White & Case, 1155 Avenue of the Americas, New York, NY 10036 and has appointed Brian J. Richmand and John M.B. O'Connor, and each of them, as the Attorneys-in-Fact for such Selling Stockholder. (e) This Selling Stockholder has appointed Steven R. Abbott, David A. Owen and Debra F. Minott, and each of them, as the Attorneys-in-Fact for such Selling Stockholder. - 13 -
EX-99.5 6 EXHIBIT 5 - FORM OF LOCK-UP AGREEMENT EXHIBIT 5 ESSEX INTERNATIONAL INC. Common Stock Lock-Up Agreement April , 1997 Essex International Inc., 1601 Wall Street, Fort Wayne, Indiana 46802. Goldman, Sachs & Co. Goldman Sachs International Smith Barney Inc. Smith Barney Inc. Donaldson, Lufkin & Jenrette Donaldson, Lufkin & Jenrette Securities Securities Corporation Corporation Lehman Brothers Inc., Lehman Brothers International (Europe), As proposed representatives of the As proposed representatives of the several U.S. Underwriters, several International Underwriters, c/o Goldman, Sachs & Co., c/o Goldman Sachs International, 85 Broad Street, Peterborough Court, New York, New York 10004. 133 Fleet Street, London EC4A 2BB, England Ladies and Gentlemen: The undersigned hereby irrevocably confirms, covenants and agrees that during the period beginning from the date hereof and continuing to and including the date 180 days after the date of the final prospectuses used in connection with the proposed offering of common stock, par value $.01 per share (the "Common Stock"), by Essex International Inc. (the "Company") and certain selling shareholders (the "Offering") the undersigned will not, directly or indirectly, offer, sell, contract to sell or otherwise dispose of, including, without limitation, through the entry into a physically or cash-settled derivative instrument, any shares of Common Stock or any securities of the Company that are substantially similar to the Common Stock, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any such substantially similar securities (other than upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement), without the prior written consent of Goldman, Sachs & Co. In the event that the Offerings are not consummated prior to October 1, 1997, this Agreement shall be null and void. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, --------------------------------------- (Insert Full Name of Stockholder) --------------------------------------- Signature (individual) EX-99.6 7 EXHIBIT 6 - FORM OF CUSTODY AGREEMENT EXHIBIT 6 ESSEX INTERNATIONAL INC. Common Stock ------------------- Custody Agreement The Bank of New York 101 Barclay Street New York, NY 10286 Gentlemen: There are delivered to you herewith one or more certificates ("Certificates"), in negotiable and proper deliverable form, representing (i) at least the number of shares of Class A and Class B Common Stock, par value $0.01 per share (the "Old Common Stock"), of Essex International Inc., a Delaware corporation (the "Company"), and/or (ii) at least the number of warrants (the "Warrants") to purchase shares of Common Stock owned by the undersigned and set forth above the signature of the undersigned at the end of this letter. In the case of the Old Common Stock, the Certificates have signatures guaranteed with a medallion stamp by a financial institution participating in a medallion stamp program or are accompanied by a duly executed stock power or powers, in blank, bearing the signature of the undersigned so guaranteed; and in the case of the Warrants, the Certificates include a duly executed form of assignment with signatures guaranteed with a medallion stamp by a financial institution participating in a medallion stamp program. The undersigned has also delivered to you the following documents: (a) if acting as a trustee or in any other fiduciary or representative capacity, duly certified copies of each trust instrument, will, letters testamentary or other instrument pursuant to which the undersigned is authorized to act as a Selling Stockholder (as herein defined), (b) if a partnership, extracts of any applicable provisions of its partnership agreement authorizing it to enter into this Custody Agreement and the Underwriting Agreements (as defined herein), and (c) if a corporation, duly certified resolutions of its Board of Directors and extracts of any applicable provisions of its certificate of incorporation and by-laws authorizing it to enter into this Custody Agreement and the Underwriting Agreements. The undersigned agrees to deliver to the Attorneys-in-Fact (as defined herein) or to you such additional documentation as the Attorneys-in-Fact, or either one of them, or the Company or the Representatives (each as defined herein) or you or any of their respective counsel may reasonably request to effectuate or confirm compliance with any of the provisions hereof or of the Underwriting Agreements (as defined below), all of the foregoing to be in form and substance satisfactory in all respects to the Attorneys-in-Fact and you. The Certificates are to be held by you as Custodian for the account of the undersigned and are to be disposed of by you in accordance with this Custody Agreement. Whenever reference is made in this Custody Agreement to shares of Common Stock, it shall refer to shares of Common Stock, par value $.01 per share, of the Company existing after giving effect to the Stock Split and the Reclassification as defined in the prospectus (the "Prospectus") included in the Registration Statement No. 333-22043 relating to the Common Stock (the "Registration Statement"). Capitalized terms used but not defined herein have the meanings assigned to such terms in the Underwriting Agreements. Concurrently with the execution and delivery of this Custody Agreement, the undersigned has executed an irrevocable power of attorney ("Power of Attorney") to Richard A. Friedman and Joseph H. Gleberman, or their duly designated substitutes (individually, an "Attorney-in-Fact" and collectively, the "Attorneys-in-Fact") authorizing the Attorneys-in-Fact, or any one of them, to sell at each Time of Delivery (as defined in the Underwriting Agreements) (i) from the number of shares of Old Common Stock represented by the Certificates that number of shares of Common Stock specified to you in writing by an Attorney-in-Fact which shall be no greater than the total number (the "Stock Total Number") of shares of Old Common Stock set forth above the signature of the undersigned at the end of this letter, as adjusted for the Stock Split and the Reclassification (the "Stock Adjusted Total Number"), and (ii) that number of Warrants specified to you in writing by an Attorney-in-Fact which shall be no greater than the total number (the "Warrant Total Number") of Warrants set forth above the signature of the undersigned at the end of this letter, as adjusted for the Stock Split and the Reclassification (the "Warrant Adjusted Total Number"), and for that purpose to enter into and perform (i) an underwriting agreement (the "U.S. Underwriting Agreement"), among the Company, Essex Group, Inc. ("Essex"), certain stockholders of the Company including the undersigned (the "Selling Stockholders") and Goldman, Sachs & Co., Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation and Lehman Brothers Inc., as representatives (the "U.S. Representatives") of the several underwriters (the "U.S. Underwriters") to be named in Schedule I thereto; and (ii) an underwriting agreement (the "International Underwriting Agreement" and, together with the U.S. Underwriting Agreement, the "Underwriting Agreements") among the Company, Essex, the Selling Stockholders and Goldman Sachs International, Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation and Lehman Brothers International (Europe), as representatives (the "International Representatives" and, together with the U.S. Representatives, the "Representatives") of the several underwriters to be named in Schedule I thereto (the "International Underwriters" and, together with the U.S. Underwriters, the "Underwriters"). The aggregate number of Firm Shares (as defined in the Underwriting Agreements) and Optional Shares (as defined in the Underwriting Agreements) (the Firm Shares and the Optional Shares, collectively, the "Shares") to be sold by the undersigned pursuant to the Underwriting Agreements in the offerings (the "Offerings") thereunder shall be no greater than the Stock Adjusted Total Number of shares of Common Stock, and the aggregate number of Firm Warrants (as defined in the Underwriting Agreements) and Optional Warrants (as defined in the Underwriting Agreements) to be sold by the undersigned pursuant to the Underwriting Agreements shall be no greater than the Warrant Adjusted Total Number of Warrants. You are authorized and directed to hold the Certificates deposited with you hereunder in your custody, and at each Time of Delivery specified in the Underwriting Agreements at which the undersigned is selling any Shares and/or Warrants you shall take all necessary action, as requested in writing, (i) to cause any and all shares of Old Common Stock to be exchanged for shares of Common Stock pursuant to the Stock Split and the Reclassification, to effect any adjustment to the Warrants resulting from the Stock Split or Reclassification and to cause the Company or the transfer agent and registrar for the Common Stock to cause the number of Shares and/or Warrants to be sold by the undersigned to be transferred on the books of the Company into such names as the Attorneys-in-Fact, or any one of them, or the Representatives shall have instructed you in writing and to exchange the old certificates representing such Shares and/or Warrants for new certificates for such Shares and/or Warrants registered in such names and in such denominations as the Attorneys-in-Fact or the Representatives shall have instructed you in writing, (ii) to deliver such new certificates to the Representatives, for the accounts of the Underwriters, against payment for such Shares and/or Warrants, give receipt for such payment, and deposit the same to your account, and (iii) to pay such expenses, including transfer taxes, out of monies on deposit with you for such purpose as you may be instructed in writing to pay by the Attorneys-in-Fact, or any one of them, and, when instructed by an Attorney-in-Fact to do so, remit to the undersigned or such other person as an Attorney-in-Fact may direct the balance, after deducting such expenses, of the amount received by you as payment for such Shares and/or Warrants. Promptly after the earlier of notification by any Attorney-in-Fact of the expiration of the 30 calendar day period following the First Time of Delivery or notification by the Representatives of the Second Time of Delivery, as each is provided for in the Underwriting Agreements, you shall return to the undersigned a new certificate or certificates (which you shall have obtained from the Company or the transfer agent), representing the number of shares of Common Stock and/or Warrants, if any, represented by the Certificate(s) deposited with you which is in excess of the number of Shares and/or Warrants sold by the undersigned to the Underwriters. -2- If the Underwriting Agreements shall not be entered into and the transactions contemplated thereby consummated prior to the 45th day after the date of this Custody Agreement then, upon the written request of the undersigned to you (accompanied by written notice of termination of the Power of Attorney addressed to each of the Attorneys-in-Fact, in your care) on or after that date, you are to return to the undersigned the Certificates deposited with you hereunder. Under the terms of the Power of Attorney, the authority conferred thereby is granted, made and conferred subject to and in consideration of the interests of the Underwriters and, except as set forth in the Power of Attorney, is irrevocable and not subject to termination by the undersigned or by operation of law, and the obligations of the undersigned under the Underwriting Agreements are similarly not subject to termination by the undersigned. Accordingly, the Certificates deposited with you hereunder and this Custody Agreement and your authority hereunder are subject to the interests of the Underwriters, and this Custody Agreement and your authority hereunder are irrevocable and are not subject to termination by the undersigned, except as set forth in the preceding paragraph, or by operation of law, whether by the death or incapacity of the undersigned (if the undersigned is an individual), the death of any trustee or executor or the termination of any trust or estate (if the undersigned is a trust or estate), the dissolution or liquidation of any corporation or partnership (if the undersigned is a corporation or partnership), or the occurrence of any other event. If any event referred to in the preceding sentence should occur before the delivery of the Shares and/or Warrants to be sold by the undersigned under the Underwriting Agreements, Certificates for such shall, except as specifically provided in the Underwriting Agreement, be delivered by you on behalf of the undersigned in accordance with the terms and conditions of the Underwriting Agreements and this Custody Agreement, and action taken by you pursuant to this Custody Agreement shall be as valid as if such event had not occurred, whether or not you or the Attorneys-in-Fact, or any one of them, shall have received notice of such event. Until payment of the purchase price for the Shares and/or Warrants to be sold by the undersigned to the Underwriters has been made to you by or for the account of the Underwriters, the undersigned shall remain the owner of all shares of Old Common Stock, shares of Common Stock and/or Warrants represented by the Certificates and shall have the right to vote all shares of Old Common Stock or Common Stock represented by the Certificates and to receive all dividends and distributions thereon. You shall be entitled to act and rely upon any statement, request, notice or instructions respecting this Custody Agreement given to you by the Attorneys-in-Fact, or any one of them; provided, however, that you shall not be entitled to act on any statement or notice to you with respect to a Time of Delivery under the Underwriting Agreements, or with respect to the termination of the Underwriting Agreements, or advising that the Underwriting Agreements have not been executed and delivered, unless such statement or notice shall have been confirmed in writing to you by the Representatives. It is understood that you assume no responsibility or liability to any person other than to deal with the Certificates, Shares and/or Warrants and the proceeds from the sale of the Shares and/or Warrants represented by the Certificates in accordance with the provisions of this Custody Agreement, and the undersigned agrees to indemnify and hold you harmless from and against all losses, damages, claims and liabilities arising out of or in connection with your acting as Custodian hereunder except for such losses, damages, claims and liabilities due to your negligence, willful misconduct or bad faith. This Custody Agreement constitutes a representation and warranty by, and a covenant and agreement of, the undersigned that: -3- 1. The undersigned (if the undersigned is a stockholder) has good and valid title to the shares of Old Common Stock represented by the Certificates and, upon effectiveness of the Stock Split and the Reclassification, the undersigned will have, immediately prior to each Time of Delivery (as defined in the Underwriting Agreements), good and valid title to the Shares to be sold by the undersigned at such Time of Delivery, free and clear of all liens, encumbrances, equities or adverse claims and full right, power and authority to sell, assign, transfer and deliver such Shares, subject to this Custody Agreement, the Underwriting Agreements and the Power of Attorney; the undersigned (if the undersigned is a warrantholder) has good and valid title to the Warrants represented by the Certificates to be sold by the undersigned immediately prior to each Time of Delivery, free and clear of all liens, encumbrances, equities or adverse claims and full right, power and authority to sell, assign, transfer and deliver such Warrants, subject to this Custody Agreement, the Underwriting Agreements and the Power of Attorney; and upon delivery of the certificates representing all Shares and/or Warrants to be sold by the undersigned and payment therefor pursuant to the Underwriting Agreements, good and valid title to such Shares and/or Warrants, free and clear of all liens, encumbrances, equities or adverse claims, will pass to the several Underwriters. 2. The undersigned has, and at all times through the last Time of Delivery specified in the Underwriting Agreements will have, all consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder of this Custody Agreement, the Power of Attorney and the Underwriting Agreements, and for the sale and delivery of the Shares and/or Warrants to be sold by such Selling Stockholder under the Underwriting Agreements; and such Selling Stockholder has full right, power and authority to enter into this Agreement, the Power-of-Attorney and the Underwriting Agreements. This Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by the undersigned and are, and at all times through the last Time of Delivery will be, valid and binding obligations of the undersigned. The Underwriting Agreement has been duly authorized by the undersigned and, when executed and delivered on behalf of the undersigned and thereafter at all times through the last Time of Delivery, will be valid and binding obligations of the undersigned. Compliance by the undersigned with all of the provisions of this Custody Agreement, the Underwriting Agreement and the Power of Attorney and the consummation of the transactions contemplated herein and therein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute or any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the undersigned is a party or by which it is bound or to which any of the property or assets of the undersigned is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the undersigned (if the undersigned is a corporation), the Partnership Agreement or Articles of Partnership of the undersigned (if the undersigned is a partnership) or other constituent documents of the undersigned (if the undersigned is neither a corporation nor a partnership) or any order to which such Selling Stockholder is bound or any rule or regulation of any court or governmental agency or body having jurisdiction over the undersigned or any of the undersigned's properties. 3. The undersigned has carefully reviewed the representations, warranties, statements and agreements to be made by the undersigned as a Selling Stockholder in the Underwriting Agreements and does hereby represent, warrant and agree that (a) such representations, warranties, statements and agreements, insofar as they relate to the undersigned, are true and correct as of the date hereof and will be true and correct at all times through the last Time of Delivery specified in the Underwriting Agreements at which the undersigned is selling any Shares and/or Warrants and (b) such agreements, insofar as they relate to the undersigned, have (where applicable) been complied with as of the date hereof and will be complied with on and after each such Time of Delivery. 4. The undersigned has received and carefully reviewed a copy of the preliminary prospectus, dated April 2, 1997 (the "Preliminary Prospectus"), and will so review any amendment to the Preliminary Prospectus upon receipt thereof. To the extent that any statements or omissions made in the Registration Statement, any Preliminary -4- Prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by the undersigned expressly for use therein, such Registration Statement, Preliminary Prospectus and the Prospectus and any further amendments or supplements to either the Registration Statement and the Prospectus, did, or will, when they become effective or are filed with the Securities and Exchange Commission (the "Commission"), as the case may be, conform in all material respects to the requirements of the Securities Act of 1933, as amended (the "Act"), and the rules and regulations of the Commission thereunder and did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and in that regard the undersigned (i) confirms the accuracy of the information concerning the undersigned and the undersigned's stockholdings and/or warrantholdings in the Company as set forth in the Selling Stockholder's Questionnaire (the "Questionnaire") delivered by the undersigned to the Company, pursuant to which the undersigned elected to sell the Shares and/or Warrants in the transactions contemplated hereby, (ii) also confirms the accuracy of the information concerning the undersigned contained in the Preliminary Prospectus, (iii) agrees immediately to notify the Company and promptly (but in any event within three business days thereafter) to confirm the same in writing if, at any time from the date hereof until the latest of (a) the completion of the public offering of the Shares and the shares of Common Stock to be received by the Underwriters upon redemption of the Warrants, (b) the last Time of Delivery for the Shares and Warrants provided for in the Underwriting Agreements and (c) 25 days after the date of the final prospectus used in connection with the Offerings, there should be any change affecting the accuracy of the above-mentioned information, or if any subsequent version of such section of the prospectus delivered to the undersigned should be inaccurate, and (iv) agrees that for all purposes of the foregoing representation and warranty and the similar representations, warranties and indemnities in the Underwriting Agreements, delivery of this Custody Agreement and the statements contained herein and in the Questionnaire constitute (and the absence of any such notice as is referred to in subclause (iii) constitutes on a continuing basis) written information furnished to the Company expressly for use in the Preliminary Prospectus, Registration Statement, Prospectus and any such amendment or supplement thereto. 5. The undersigned hereby covenants and agrees that during the period beginning from the date of the Underwriting Agreements and continuing to and including the date one hundred eighty (180) days after the date of the Prospectus, the undersigned will not offer, sell, contract to sell or otherwise dispose of, including, without limitation, through the entry into a cash-settled derivative instrument, except as provided under the Underwriting Agreements, any shares of Common Stock, any securities of the Company that are substantially similar to the shares of Common Stock, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, shares of Common Stock, or any such substantially similar securities (other than upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of the Underwriting Agreements), without the prior written consent of Goldman, Sachs & Co. The undersigned has not taken and will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares and/or the shares of Common Stock to be received by the Underwriters upon redemption of the Warrants being sold pursuant to the Underwriting Agreements. The foregoing representations, warranties and agreements, as well as those contained in the Selling Stockholder's Questionnaire completed by the undersigned and submitted to the Company and those contained in the Underwriting Agreements, are made for the benefit of, and may be relied upon by, the other Selling Stockholders, the Attorneys-in-Fact, the Company, the Underwriters, the Custodian and the representatives, agents and counsel of each of the foregoing. -5- No party may assign any of its rights or delegate any of its obligations under this Custody Agreement without the written consent of all the other parties, which consent may be withheld in the reasonable discretion of the party whose consent it sought. Any assignment or delegation in violation of the preceding sentence shall be null and void. This Custody Agreement may be modified only by a written amendment signed by all the parties hereto, and no waiver of any provision hereof shall be effective unless expressed in a writing signed by the party to be charged. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. All notices, instructions, reports and other communications to be given or made under this Custody Agreement shall be given or made by first-class mail, postage prepaid, or by telecopy or telephone and shall be confirmed by first-class mail, postage prepaid (a) to the Custodian at: The Bank of New York 101 Barclay Street New York, NY 10286 Attn: Derivative Products Group Telephone: (212) 815-5228 Telecopy: (212) 815-5999 (b) to the undersigned at the address as set forth in the Questionnaire (c) to the Attorneys-in-Fact at: c/o Essex International, Inc. 1601 Wall Street Fort Wayne, Indiana 46802 THIS CUSTODY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. -6- Please acknowledge your acceptance hereof as Custodian, and receipt of the Certificates deposited with you hereunder, by executing and returning to the undersigned the enclosed copy hereof. Dated: ____________ ___, 1997 Total number of shares of Old Common Stock represented by stock certificates: _________________ Total number of Warrants represented by warrant certificates: _________________ Stock Total Number of shares of Old Common Stock: __________________ Warrant Total Number of Warrants: ________________ Very truly yours, ______________________________________* (Insert Full Name of Selling Stockholder) ______________________________________* Signature (individual) By:___________________________________*(Seal) Signature (corporation or partnership) Name: Title: Signature guaranteed by: By____________________________________ (NOTE: THE GUARANTEE MUST BE DONE WITH A MEDALLION STAMP BY A FINANCIAL INSTITUTION PARTICIPATING IN A MEDALLION STAMP PROGRAM.) - -------- * To be signed or completed, as appropriate, in exactly the same manner as the shares and/or warrants are registered. -7- CUSTODIAN'S ACKNOWLEDGMENT AND RECEIPT The Bank of New York, as Custodian, acknowledges acceptance of the duties of the Custodian under the foregoing Custody Agreement and receipt of the following Certificates: THE FOLLOWING TABLE IS TO BE FILLED OUT ONLY WITH RESPECT TO CERTIFICATES REPRESENTING SHARES OF OLD COMMON STOCK AND/OR WARRANTS: No. of Shares of Cert. Number Old Common Stock No. of Warrants ____________ ________________ _______________ ____________ ________________ _______________ ____________ ________________ _______________ ____________ ________________ _______________ ____________ ________________ _______________ ____________ ________________ _______________ ____________ ________________ _______________ ____________ ________________ _______________ ____________ ________________ _______________ ____________ ________________ _______________ ____________ ________________ _______________ ____________ ________________ _______________ ____________ ________________ _______________ ____________ ________________ _______________ Dated:_______________, 1997 The Bank of New York As Custodian By:___________________________ Name: Title: -8- -----END PRIVACY-ENHANCED MESSAGE-----