ESSEX INTERNATIONAL INC.
COMMON STOCK
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Custody Agreement
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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 common stock, par value $0.01 per share (the
"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
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 herein), 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. As used in this
Custody Agreement, the term "Prospectus" shall refer to the prospectus included
in the Registration Statement on Form S-1 (File No. 333-33591) 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 _______________________, 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) 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 Common
Stock set forth above the signature of the undersigned at the end of this
letter, 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, 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 Xxxxxxx, Sachs & Co., Xxxxx Xxxxxx Inc., Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation and Xxxxxx 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 Xxxxxxx Xxxxx International, Xxxxx Xxxxxx
Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and Xxxxxx 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 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 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 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, (ii) to deliver certificates representing such Shares
and/or Warrants 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 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.
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
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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 Common Stock and/or Warrants represented by the Certificates and shall
have the right to vote all shares of 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:
1. The undersigned (if the undersigned is a stockholder) has good and valid
title to the Shares represented by the Certificates and 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.
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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
(except those, if any, for which waivers or consents have been duly obtained) 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 August 28, 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 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
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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 and (b) the last Time of Delivery for the Shares
and Warrants provided for in the Underwriting Agreements, 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 ninety (90) 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 Xxxxxxx, Xxxxx & 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.
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
proceeding 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.
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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
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Derivative Products Group
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(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.
0000 Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
THIS CUSTODY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
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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: September 17, 1997
Total number of shares of Common Stock
represented by stock certificates: -----------------------------
Total number of Warrants represented by
warrant certificates: -----------------------------
Stock Total Number of shares of 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.)
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* To be signed or completed, as appropriate, in exactly the same manner as the
shares and/or warrants are registered.
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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 COMMON STOCK AND/OR WARRANTS:
No. of Shares of
Cert. Number Common Stock No. of Warrants
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Dated:_______________, 1997 The Bank of New York
As Custodian
By:___________________________
Name:
Title:
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