Exhibit 99.5
Conformed Copy
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of May 19, 1997, among NXS
Acquisition Corp., a Delaware corporation, KKR 1996 Fund L.P., a Delaware
limited partnership ("KKR 1996"), NXS Associates, L.P., a Delaware limited
partnership ("Associates"), KKR Partners II, L.P., a Delaware limited
partnership ("KKR Partners II" and, collectively with KKR 1996 and Associates,
the "Common Stock Partnerships"), and NXS I, L.L.C., a Delaware limited
liability company ("NXS LLC").
RECITALS
Pursuant to an Agreement and Plan of Merger, dated as of January 23,
1997 (the "Merger Agreement"), between Amphenol Corporation ("Amphenol") and the
Company (as defined below), the Company will be merged with and into Amphenol on
May 19, 1997 (the "Merger"). As a result of the Merger, each outstanding share
of common stock, par value $.01 per share (the "Common Stock") of the Company,
all 100 of which shares are owned collectively by the Common Stock Partnerships,
will be converted into (i) a number of shares of Class A common stock, par value
$.001 per share, of Amphenol equal to the quotient of (A) 13,116,955 divided by
(B) the number of shares of Common Stock outstanding immediately prior to the
Effective Time of the Merger. At the Effective Time of the Merger, Amphenol
shall succeed by merger to all of the rights and obligations of the Company,
including those set forth herein, as well as to all of the other property and
assets of the Company.
Pursuant to an agreement between and among NXS LLC and certain
stockholders of Amphenol, NXS LLC may acquire shares of Amphenol Common Stock.
Pursuant to a Stock Sale and Equity Contribution Agreement, dated as
of May 19, 1997 (the "Equity Contribution Agreement"), among the Company and the
Common Stock Partnerships, the Common Stock Partnerships made equity
contributions of $341,039,822 in the aggregate to the Company. Upon the merger
of the Company with and into Amphenol, such $341,039,822 will be received by
Amphenol as an equity contribution by the Common Stock Partnerships.
AGREEMENT
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following respective meanings:
"Common Stock": the common stock, par value $.01 per share, of NXS
Acquisition Corp. and its successors, including, without limitation, the
common stock of Amphenol into which the Common Stock may be converted by
Merger.
"Common or Common Equivalent Registrable Securities": Registrable
Securities which are (i) Common Stock or (ii) securities that are
convertible into or exchangeable or exercisable for Common Stock.
"Company": NXS Acquisition Corp. and its successors, including,
without limitation, Amphenol Corporation as successor by Merger.
"Demand Party": (a) KKR 1996, (b) Associates, (c) KKR Partners II,
(d) NXS LLC or (e) any other Holder or Holders, including, without
limitation, any present or future general or limited partner of either
Common Stock Partnership, or any general or limited partner of any general
or limited partner thereof, that may become an assignee of such Common
Stock Partnership's rights hereunder; provided that to be a Demand Party
under this clause (e), a Holder or Holders must either individually or in
aggregate with all other Holders with whom it is acting together to demand
registration own at least 1% of the total number of Registrable
Securities.
"Exchange Act": The Securities Exchange Act of 1934, as amended, or
any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference to the
comparable section, if any, of any such similar federal statute.
"Holder": Each Common Stock Partnership, NXS LLC, and any other
holder of Registrable Securities (including any direct or indirect
transferees of a Common Stock Partnership or NXS LLC) who agrees in
writing to be bound by the provisions of this Agreement.
"Person": Any individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or
agency thereof.
"Registrable Securities": Any Common Stock acquired by a Common
Stock Partnership or by NXS LLC from the Company or any affiliate of the
Company (including, without limitation, from any person defined as a
"Stockholder" pursuant to the Stockholders Agreement dated as of January
23, 1997 by and among NXS LLC and the other parties named therein),
whether as a result of the Merger or upon the conversion of any
convertible security or otherwise, and any Common Stock or convertible
security which may be issued or distributed in respect thereof by way of
stock dividend or stock split or other distribution, recapitalization or
reclassification. As to any particular Registrable Securities, once
issued, such Registrable Securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the sale by
the Holder of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (ii) such securities shall
have been distributed to the public
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pursuant to Rule 144 (or any successor provision) under the Securities
Act, (iii) such securities shall have been otherwise transferred, new
certificates for such securities not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent
disposition of such securities shall not require registration or
qualification of such securities under the Securities Act or any state
securities or blue sky law then in force, or (iv) such securities shall
have ceased to be outstanding.
"Registration Expenses": Any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees
(including, if applicable, the fees and expenses of any "qualified
independent underwriter," as such term is defined in Schedule E to the
By-laws of the NASD, and of its counsel), (ii) all fees and expenses of
complying with securities or blue sky laws (including fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any
securities exchange pursuant to clause (viii) of Section 4 and all rating
agency fees, (v) the fees and disbursements of counsel for the Company and
of its independent public accountants, including the expenses of any
special audits and/or "cold comfort" letters required by or incident to
such performance and compliance, (vi) the reasonable fees and
disbursements of counsel selected pursuant to Section 7 hereof by the
Holders of the Registrable Securities being registered to represent such
Holders in connection with each such registration, (vii) any fees and
disbursements of underwriters customarily paid by the issuers or sellers
of securities, including liability insurance if the Company so desires or
if the underwriters so require, and the reasonable fees and expenses of
any special experts retained in connection with the requested
registration, but excluding underwriting discounts and commissions and
transfer taxes, if any, and (viii) other reasonable out-of-pocket expenses
of Holders (provided that such expenses shall not include expenses of
counsel other than those provided for in clause (vi) above).
"Securities Act": The Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"SEC": The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
2. Incidental Registrations. (a) Right to Include Common or Common
Equivalent Registrable Securities. If the Company at any time after the date
hereof proposes to register its Common Stock (or any security which is
convertible into or exchangeable or exercisable for Common Stock) under the
Securities Act (other than a registration on Form S-4 or S-8, or any successor
or other forms promulgated for similar purposes), whether or not for sale for
its own account, in a manner which would permit registration of Common or Common
Equivalent Registrable Securities for sale to the public under the Securities
Act, it
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will, at each such time, give prompt written notice to all Holders of Common or
Common Equivalent Registrable Securities of its intention to do so and of such
Holders' rights under this Section 2. Upon the written request of any such
Holder made within 15 days after the receipt of any such notice (which request
shall specify the Common or Common Equivalent Registrable Securities intended to
be disposed of by such Holder), the Company will use its best efforts to effect
the registration under the Securities Act of all Common or Common Equivalent
Registrable Securities which the Company has been so requested to register by
the Holders thereof, to the extent requisite to permit the disposition of the
Common or Common Equivalent Registrable Securities so to be registered; provided
that (i) if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to proceed with the proposed registration of the
securities to be sold by it, the Company may, at its election, give written
notice of such determination to each Holder of Common or Common Equivalent
Registrable Securities and, thereupon, shall be relieved of its obligation to
register any Common or Common Equivalent Registrable Securities in connection
with such registration (but not from its obligation to pay the Registration
Expenses in connection therewith), and (ii) if such registration involves an
underwritten offering, all Holders of Common or Common Equivalent Registrable
Securities requesting to be included in the Company's registration must sell
their Common or Common Equivalent Registrable Securities to the underwriters
selected by the Company on the same terms and conditions as apply to the
Company, with such differences, including any with respect to indemnification
and liability insurance, as may be customary or appropriate in combined primary
and secondary offerings. If a registration requested pursuant to this Section
2(a) involves an underwritten public offering, any Holder of Common or Common
Equivalent Registrable Securities requesting to be included in such registration
may elect, in writing prior to the effective date of the registration statement
filed in connection with such registration, not to register such securities in
connection with such registration. Nothing in this Section 2(a) shall operate to
limit the right of Holder to (i) request the registration of Common Stock
issuable upon conversion or exercise of convertible securities held by such
Holder notwithstanding the fact that at the time of request such Holder holds
only convertible securities or (ii) request the registration at one time of both
Common Stock and securities convertible into Common Stock.
(b) Expenses. The Company will pay all Registration Expenses in
connection with each registration of Common or Common Equivalent Registrable
Securities requested pursuant to this Section 2.
(c) Priority in Incidental Registrations. If a registration pursuant
to this Section 2 involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering, so as to be likely to have an adverse effect on the
price, timing or distribution of the Securities offered in such offering as
contemplated by the Company (other than the Common or Common Equivalent
Registrable Securities), then the Company will include in such registration (i)
first, 100% of the securities the Company proposes to sell and (ii) second, to
the extent of the number of Common or Common Equivalent Registrable Securities
requested to be included in such
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registration which, in the opinion of such managing underwriter, can be sold
without having the adverse effect referred to above, the number of Common or
Common Equivalent Registrable Securities which the Holders have requested to be
included in such registration, such amount to be allocated pro rata among all
requesting Holders on the basis of the relative number of shares of Common or
Common Equivalent Registrable Securities then held by each such Holder (provided
that any shares thereby allocated to any such Holder that exceed such Holder's
request will be reallocated among the remaining requesting Holders in like
manner).
3. Registration on Request. (a) Request by the Demand Party. At any
time, upon the written request of the Demand Party requesting that the Company
effect the registration under the Securities Act of all or part of such Demand
Party's Registrable Securities and specifying the amount and intended method of
disposition thereof, the Company will promptly give written notice of such
requested registration to all other Holders of such Registrable Securities, and
thereupon will, as expeditiously as possible, use its best efforts to effect the
registration under the Securities Act of:
(i) such Registrable Securities (including, if such request relates
to a security which is convertible into shares of Common Stock, the shares
of Common Stock issuable upon such conversion) which the Company has been
so requested to register by the Demand Party; and
(ii) all other Registrable Securities of the same class or series as
are to be registered at the request of a Demand Party and which the
Company has been requested to register by any other Holder thereof by
written request given to the Company within 15 days after the giving of
such written notice by the Company (which request shall specify the amount
and intended method of disposition of such Registrable Securities),
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities so to be
registered; provided, that with respect to any Demand Party other than a Common
Stock Partnership or NXS LLC, the Company shall not be obligated to effect any
registration of Registrable Securities under this Section 3(a) unless such
Demand Party requests that the Company register at least 1% of the total number
of Registrable Securities; and provided, further, that, unless Holders of a
majority of the shares of Registrable Securities held by Holders consent thereto
in writing, the Company shall not be obligated to file a registration statement
relating to any registration request under this Section 3(a) (x) within a period
of nine months after the effective date of any other registration statement
relating to any registration request under this Section 3(a) which was not
effected on Form S-3 (or any successor or similar short-form registration
statement) or relating to any registration effected under Section 2, or (y) if
with respect thereto the managing underwriter, the SEC, the Securities Act or
the rules and regulations thereunder, or the form on which the registration
statement is to be filed, would require the conduct of an audit other than the
regular audit conducted by the Company at the end of its fiscal year, in which
case the filing may be delayed until the completion of such regular audit
(unless the Holders of the Registrable Securities to be registered agree to pay
the expenses of the Company in connection with such an audit other than the
regular audit). Nothing in this
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Section 3 shall operate to limit the right of a Holder to (i) request the
registration of Common Stock issuable upon conversion or exercise of convertible
securities held by such Holder notwithstanding the fact that at the time of
request such Holder holds only convertible securities or (ii) request the
registration at one time of both Common Stock and securities convertible into
Common Stock.
(b) Registration Statement Form. If any registration requested
pursuant to this Section 3 which is proposed by the Company to be effected by
the filing of a registration statement on Form S-3 (or any successor or similar
short-form registration statement) shall be in connection with an underwritten
public offering, and if the managing underwriter shall advise the Company in
writing that, in its opinion, the use of another form of registration statement
is of material importance to the success of such proposed offering, then such
registration shall be effected on such other form.
(c) Expenses. The Company will pay all Registration Expenses in
connection with the first ten (10) registrations of each class or series of
Registrable Securities pursuant to this Section 3 upon the written request of
any of the Holders, provided that, for purposes hereof, a request to register
Common Stock into which a convertible security is convertible in conjunction
with a registration of such convertible security shall be deemed to be one
request for registration of a class or series of Registrable Securities. All
expenses for any subsequent registrations of Registrable Securities pursuant to
this Section 3 shall be paid pro rata by the Company and all other Persons
(including the Holders) participating in such registration on the basis of the
relative number of shares of Common Stock of each such person whose Registrable
Securities are included in such registration.
(d) Effective Registration Statement. A registration requested
pursuant to this Section 3 will not be deemed to have been effected unless it
has become effective and all of the Registrable Securities registered thereunder
have been sold; provided that if, within 180 days after it has become effective,
the offering of Registrable Securities pursuant to such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court, such registration will be deemed
not to have been effected.
(e) Selection of Underwriters. If a requested registration pursuant
to this Section 3 involves an underwritten offering, the Holders of a majority
of the shares of Registrable Securities which are held by Holders and which the
Company has been requested to register shall have the right to select the
investment banker or bankers and managers to administer the offering; provided,
however, that such investment banker or bankers and managers shall be reasonably
satisfactory to the Company.
(f) Priority in Requested Registrations. If a requested registration
pursuant to this Section 3 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration (including securities
of the Company which are not Registrable Securities) exceeds the number which
can be sold in such offering, the Company will include in such registration only
the Registrable Securities requested to be included in such registration. In
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the event that the number of Registrable Securities requested to be included in
such registration exceeds the number which, in the opinion of such managing
underwriter, can be sold, the number of such Registrable Securities to be
included in such registration shall be allocated pro rata among all requesting
Holders on the basis of the relative number of shares of Registrable Securities
then held by each such Holder (provided that any shares thereby allocated to any
such Holder that exceed such Holder's request shall be reallocated among the
remaining requesting Holders in like manner). In the event that the number of
Registrable Securities requested to be included in such registration is less
than the number which, in the opinion of the managing underwriter, can be sold,
the Company may include in such registration the securities the Company proposes
to sell up to the number of securities that, in the opinion of the underwriter,
can be sold.
(g) Additional Rights. If the Company at any time grants to any
other holders of Common Stock any rights to request the Company to effect the
registration under the Securities Act of any such shares of Common Stock on
terms more favorable to such holders than the terms set forth in this Section 3,
the terms of this Section 3 shall be deemed amended or supplemented to the
extent necessary to provide the Holders such more favorable rights and benefits.
4. Registration Procedures. If and whenever the Company is required
to use its best efforts to effect or cause the registration of any Registrable
Securities under the Securities Act as provided in this Agreement, the Company
will, as expeditiously as possible:
(i) prepare and, in any event within 120 days after the end of the
period within which a request for registration may be given to the
Company, file with the SEC a registration statement with respect to such
Registrable Securities and use its best efforts to cause such registration
statement to become effective, provided, however, that the Company may
discontinue any registration of its securities which is being effected
pursuant to Section 2 at any time prior to the effective date of the
registration statement relating thereto;
(ii) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for a period not in excess of 270 days and to comply with the
provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC thereunder with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement; provided that
before filing a registration statement or prospectus, or any amendments or
supplements thereto, the Company will furnish to counsel selected pursuant
to Section 7 hereof by the Holders of the Registrable Securities covered
by such registration statement to represent such Holders, copies of all
documents proposed to be filed, which documents will be subject to the
review of such counsel;
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(iii) furnish to each seller of such Registrable Securities such
number of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits filed therewith,
including any documents incorporated by reference), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such
seller may reasonably request in order to facilitate the disposition of
the Registrable Securities by such seller;
(iv) use its best efforts to register or qualify such Registrable
Securities covered by such registration in such jurisdictions as each
seller shall reasonably request, and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
clause (iv), it would not be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(v) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vi) notify each seller of any such Registrable Securities covered
by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act within the
appropriate period mentioned in clause (ii) of this Section 4, of the
Company's becoming aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing, and at the request of any such seller,
prepare and furnish to such seller a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include 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 in the light of
the circumstances then existing;
(vii) otherwise use its 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 (but not more than eighteen
months) after the effective date of the registration statement, an
earnings statement which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations promulgated thereunder;
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(viii) (A) if such Registrable Securities are Common Stock
(including Common Stock issuable upon conversion of a convertible
security), use its best efforts to list such Registrable Securities on any
securities exchange on which the Common Stock is then listed if such
Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange; (B) if such Registrable
Securities are convertible securities, upon the reasonable request of
sellers of a majority of shares of such Registrable Securities, use its
best efforts to list the convertible securities and, if requested, the
Common Stock underlying the convertible securities, notwithstanding that
at the time of request such sellers hold only convertible securities, on
any securities exchange so requested, if such Registrable Securities are
not already so listed, and if such listing is then permitted under the
rules of such exchange; (C) and use its best efforts to provide a transfer
agent and registrar for such Registrable Securities covered by such
registration statement not later than the effective date of such
registration statement;
(ix) enter into such customary agreements (including an underwriting
agreement in customary form), which may include indemnification provisions
in favor of underwriters and other persons in addition to, or in
substitution for the provisions of Section 5 hereof, and take such other
actions as sellers of a majority of shares of such Registrable Securities
or the underwriters, if any, reasonably requested in order to expedite or
facilitate the disposition of such Registrable Securities;
(x) obtain a "cold comfort" letter or letters from the Company's
independent public accounts in customary form and covering matters of the
type customarily covered by "cold comfort" letters as the seller or
sellers of a majority of shares of such Registrable Securities shall
reasonably request (provided that Registrable Securities constitute at
least 25% of the securities covered by such registration statement);
(xi) make available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Company, and cause all of the Company's officers, directors and
employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(xii) notify counsel (selected pursuant to Section 7 hereof) for the
Holders of Registrable Securities included in such registration statement
and the managing underwriter or agent, immediately, and confirm the notice
in writing (i) when the registration statement, or any post-effective
amendment to the registration statement, shall have become effective, or
any supplement to the prospectus or any amendment prospectus shall have
been filed, (ii) of the receipt of any comments from the SEC, (iii) of any
request of the SEC to amend the registration statement or amend or
supplement the prospectus or for additional information, and (iv) of the
issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or of
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any order preventing or suspending the use of any preliminary prospectus,
or of the suspension of the qualification of the registration statement
for offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes;
(xiii) make every reasonable effort to prevent the issuance of any
stop order suspending the effectiveness of the registration statement or
of any order preventing or suspending the use of any preliminary
prospectus and, if any such order is issued, to obtain the withdrawal of
any such order at the earliest possible moment;
(xiv) if requested by the managing underwriter or agent or any
Holder of Registrable Securities covered by the registration statement,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or agent or such
Holder reasonably requests to be included therein, including, without
limitation, with respect to the number of Registrable Securities being
sold by such Holder to such underwriter or agent, the purchase price being
paid therefor by such underwriter or agent and with respect to any other
terms of the underwritten offering of the Registrable Securities to be
sold in such offering; and make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after being
notified of the matters incorporated in such prospectus supplement or
post-effective amendment;
(xv) cooperate with the Holders of Registrable Securities covered by
the registration statement and the managing underwriter or agent, if any,
to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be sold under
the registration statement, and enable such securities to be in such
denominations and registered in such names as the managing underwriter or
agent, if any, or such Holders may request;
(xvi) obtain for delivery to the Holders of Registrable Securities
being registered and to the underwriter or agent an opinion or opinions
from counsel for the Company in customary form and in form, substance and
scope reasonably satisfactory to such Holders, underwriters or agents and
their counsel; and
(xvii) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the NASD.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company with such
information regarding such seller and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in clause (vi) of this
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Section 4, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by clause (vi) of this Section 4, and, if so
directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the period mentioned in clause (ii) of this Section 4
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to clause (vi) of this Section 4 and
including the date when each seller of Registrable Securities covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by clause (vi) of this Section 4.
5. Indemnification. (a) Indemnification by the Company. In the event
of any registration of any securities of the Company under the Securities Act
pursuant to Section 2 or 3, the Company will, and it hereby does, indemnify and
hold harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by such registration statement, each affiliate of such seller
and their respective directors and officers or general and limited partners or
members or managing members (including any director, officer, affiliate,
employee, agent and controlling Person of any of the foregoing), each other
Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls such seller or any such
underwriter within the meaning of the Securities Act (collectively, the
"Indemnified Parties"), against any and all losses, claims, damages or
liabilities, joint or several, and expenses (including reasonable attorney's
fees and reasonable expenses of investigation) to which such Indemnified Party
may become subject under the Securities Act, common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof, whether or not such Indemnified Party is a party thereto) arise
out of or are based upon (a) any untrue statement or alleged untrue statement of
any material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto, or
(b) any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the case of
a prospectus, in light of the circumstances under which they were made) not
misleading, and the Company will reimburse such Indemnified Party for any legal
or any other expenses reasonably incurred by it in connection with investigating
or defending against any such loss, claim, liability, action or proceeding;
provided that the Company shall not be liable to any Indemnified Party in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto or in any
such preliminary, final or summary prospectus in reliance upon and in conformity
with written information furnished to the Company through an instrument duly
executed by such seller specifically stating that it is for use in the
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any
Indemnified Party and shall survive the transfer of such securities by such
seller.
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(b) Indemnification by the Seller. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed in accordance with Section 4 herein, that the Company shall have received
an undertaking reasonably satisfactory to it from the prospective seller of such
Registrable Securities or any underwriter to indemnify and hold harmless (in the
same manner and to the same extent as set forth in subdivision (a) of this
Section 5) the Company and all other prospective sellers with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement, if such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company through
an instrument duly executed by such seller or underwriter specifically stating
that it is for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement, or a
document incorporated by reference into any of the foregoing. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Company or any of the prospective sellers, or any of their
respective affiliates, directors, officers or controlling Persons and shall
survive the transfer of such securities by such seller. In no event shall the
liability of any selling Holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Notices of Claims, Etc. Promptly after receipt by an Indemnified
Party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 5, such Indemnified Party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided that the failure of the
Indemnified Party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 5, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, unless in such Indemnified Party's reasonable
judgment a conflict of interest between such Indemnified Party and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such Indemnified Party, and after notice from
the indemnifying party to such Indemnified Party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party will consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof, the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation.
(d) Contribution. If the indemnification provided for in this
Section 5 from the indemnifying party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then the indemnifying party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable
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by such Indemnified Party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and Indemnified Parties in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and Indemnified Parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or Indemnified Parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party under this Section
5(d) as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(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 the immediately preceding paragraph.
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.
(e) Other Indemnification. Indemnification similar to that specified
in the preceding subdivisions of this Section 5 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any federal or state law or regulation or governmental authority other than the
Securities Act.
(f) Non-Exclusivity. The obligations of the parties under this
Section 5 shall be in addition to any liability which any party may otherwise
have to any other party.
6. Rule 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Holder of
Registrable Securities, make publicly available such information), and it will
take such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell shares of Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (ii) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of any
Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
Notwithstanding anything contained in this Section 6, the Company may
de-register under Section 12 of the Exchange Act if it then is permitted to do
so pursuant to the Exchange Act and the rules and regulations thereunder and, in
such circumstances, shall not be required hereby to file any reports which may
be necessary in order for Rule 144 or any similar rule or regulation to be
available.
-13-
7. Selection of Counsel. In connection with any registration of
Registrable securities pursuant to Sections 2 and 3 hereof, the Holders of a
majority of the Registrable Securities covered by any such registration may
select one counsel to represent all Holders of Registrable Securities covered by
such registration; provided, however, that in the event that the counsel
selected as provided above is also acting as counsel to the Company in
connection with such registration, the remaining Holders shall be entitled to
select one additional counsel to represent all such remaining Holders.
8. Miscellaneous. (a) Other Investors. The Company may enter into
agreements with other holders and purchasers of Common Stock who are then
employees of the Company (or its successor) or any of its subsidiaries, making
them parties hereto (and thereby giving them all, or a portion, of the rights,
preferences and privileges of an original party hereto) with respect to
additional shares of Common Stock (the "Supplemental Agreements"); provided,
however, that pursuant to any such Supplemental Agreement, such holder or
purchaser expressly agrees to be bound by all of the terms, conditions and
obligations of this Agreement as if such holder or purchaser were an original
party hereto. All shares of Common Stock issued or issuable pursuant to such
Supplemental Agreements shall be deemed to be Registrable Securities.
(b) Holdback Agreement. If any such registration shall be in
connection with an underwritten public offering, each Holder of Registrable
Securities agrees not to effect any public sale or distribution, including any
sale pursuant to Rule 144 under the Securities Act, of any equity securities of
the Company, or of any security convertible into or exchangeable or exercisable
for any equity security of the Company (in each case, other than as part of such
underwritten public offering), within 7 days before or such period not to exceed
60 days as the underwriting agreement may require (or such lesser period as the
managing underwriters may permit) after the effective date of such registration
(except as part of such registration), and the Company hereby also so agrees and
agrees to cause each other holder of any equity security, or of any security
convertible into or exchangeable or exercisable for any equity security, of the
Company purchased from the Company (at any time other than in a public offering)
to so agree. This Section 8(b) is in addition to, and shall not be deemed to be
in limitation of, the obligations which any party to a Management Stockholder's
Agreement with Amphenol may have under Section 2(e) thereof.
(c) Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holders of
a majority of the Registrable Securities then outstanding; provided, however,
that no amendment, waiver or consent to the departure from the terms and
provisions of this Agreement that is adverse to either Common Stock Partnership,
NXS LLC or any of their respective successors and assigns shall be effective as
against any such Person for so long as such Person holds any Registrable
Securities unless consented to in writing by such Person. Each Holder of any
Registrable Securities at the time or thereafter outstanding shall be bound by
any consent authorized by this Section 8(c), whether or not such Registrable
Securities shall have been marked to indicate such consent.
-14-
(d) Successors, Assigns and Transferees. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent Holder of any Registrable
Securities, subject to the provisions contained herein. Without limitation to
the foregoing, in the event that either Common Stock Partnership or NXS LLC
distributes or otherwise transfers any shares of the Registrable Securities to
any of its present or future general or limited partners, the Company hereby
acknowledges that the registration rights granted pursuant to this Agreement
shall be transferred to such partner or partners on a pro rata basis, and that
at or after the time of any such distribution or transfer, any such partner or
group of partners may designate a Person to act on its behalf in delivering any
notices or making any requests hereunder.
(e) Notices. All notices and other communications provided for
hereunder shall be in writing and shall be sent by first class mail, telex,
telecopier or hand delivery:
(i) (A) if to the Company prior to the Merger, to:
NXS Acquisition Corp.
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
(B) if to the Company following the Merger, to:
Amphenol Corporation
000 Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
(ii) if to any Common Stock Partnership, to:
x/x XXX 0000 Xxxx X.X.
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq
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(iii) if to NXS LLC, to:
NXS I, L.L.C.
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq
(iv) if to any other holder of Registrable Securities, to the
address of such other holder as shown in the stock record book of the
Company, or to such other address as any of the above shall have
designated in writing to all of the other above.
All such notices and communications shall be deemed to have been
given or made (1) when delivered by hand, (2) five business days after being
deposited in the mail, postage prepaid, (3) when telexed answer-back received or
(4) when telecopied, receipt acknowledged.
(f) Descriptive Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(g) 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 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.
(h) Counterparts. This Agreement may be executed in counterparts,
and by different parties on separate counterparts, each of which shall be deemed
an original, but all such counterparts shall together constitute one and the
same instrument.
(i) Governing Law; Submission to Jurisdiction. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of New York applicable to contracts made and to be performed therein. The
parties to this Agreement hereby agree to submit to the jurisdiction of the
courts of the State of New York, the courts
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of the United States of America for the Southern District of New York, and
appellate courts from any thereof in any action or proceeding arising out of or
relating to this Agreement.
(j) Specific Performance. The parties hereto acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. Accordingly, it is agreed that they shall be entitled
to an injunction or injunctions to prevent breaches of the provision of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any state thereof, in
addition to any other remedy to which they may be entitled at law or in equity.
(k) Limited Liability of Partners. Notwithstanding any other
provision of this Agreement, neither the general partner nor the limited
partners, nor any future general or limited partner of any of the Common Stock
Partnerships, nor any member or managing member of NXS LLC shall have any
personal liability for performance of any obligation of such Common Stock
Partnership or NXS LLC under this Agreement.
-17-
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be duly executed on its behalf as of the
date first written above.
NXS ACQUISITION CORP.
By: Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Title: President
KKR 1996 FUND L.P.
By: KKR Associates 1996 L.P.,
its General Partner
By: KKR 1996 GP LLC,
its General Partner
By: Xxxxxxx X. Xxxxxxxxx
-----------------------------------
General Partner
NXS ASSOCIATES, L.P.
By: KKR Associates (NXS) L.P.,
its General Partner
By: KKR-NXS L.L.C.,
its General Partner
By: Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Member
KKR PARTNERS II, L.P.
By: KKR Associates,
its General Partner
By: Xxxxxxx X. Xxxxxxxxx
-----------------------------------
General Partner
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NXS I, L.L.C.
By: KKR 1996 Fund L.P.,
its Member,
By: KKR Associates 1996 L.P.
its General Partner
By: KKR 1996 GP LLC,
its General Partner
By: Xxxxxxx X. Xxxxxxxxx
-----------------------------------
General Partner
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ACKNOWLEDGEMENT
The undersigned authorized officer of Amphenol Corporation is aware of this
Registration Rights Agreement and acknowledges that Amphenol Corporation will be
bound by the terms hereof as successor to NXS Acquisition Corp. by merger.
AMPHENOL CORPORATION
By Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
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