Exhibit 4.5
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of May 19, 1997, is made by and between
AMPHENOL CORPORATION a Delaware corporation (hereinafter referred to as the
"Company"), and _____________________, an employee of the Company or a
Subsidiary (as defined below) or Affiliate (as defined below) of the Company
(hereinafter referred to as "Optionee").
WHEREAS, the Company wishes to afford the Optionee the opportunity to
purchase shares of its Class A Common Stock, par value $.001 per share (the
"Common Stock");
WHEREAS, the Company wishes to carry out the Plan (as hereinafter
defined), the terms of which are hereby incorporated by reference and made a
part of this Agreement; and
WHEREAS, the Committee (as hereinafter defined), appointed to
administer the Plan, has determined that it would be to the advantage and best
interest of the Company and its stockholders to grant the Non-Qualified Options
provided for herein to the Optionee as an incentive for increased efforts during
his term of office with the Company or its Subsidiaries or Affiliates, and has
advised the Company thereof and instructed the undersigned officers to issue
said Options;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall
have the meaning specified in the Plan or below unless the context clearly
indicates to the contrary.
Section 1.1 - Affiliate
"Affiliate" shall mean, with respect to the Company, any corporation
directly or indirectly controlling, controlled by, or under common control with,
the Company or any other entity designated by the Board of Directors of the
Company in which the Company or an Affiliate has an interest.
Section 1.2 - Cause
"Cause" shall mean, (i) the Optionee's willful and continued failure
to perform his or her duties with respect to the Company or its Subsidiaries
which continues beyond 10
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days after a written demand for substantial performance is delivered to the
Optionee by the Company or (ii) misconduct by the Optionee (x) involving
dishonesty or breach of trust in connection with Optionee's employment, (y)
which would be a reasonable basis for an indictment of the Optionee of a
felony or a misdemeanor involving moral turpitude or (z) which results in a
demonstrable injury to the Company.
Section 1.3 - Change of Control
"Change of Control" shall mean (i) a sale of all or substantially all
of the assets of the Company to a Person who is not an Affiliate of Kohlberg
Kravis Xxxxxxx & Co. L.P. ("KKR"), (ii) an acquisition of voting stock of the
Company resulting in more than 50% of the voting stock of the Company being held
by a Person or Group that does not include KKR or any of its Affiliates or (iii)
the consummation of a merger, reorganization, business combination or
liquidation of the Company, but only if such merger, reorganization, business
combination or liquidation results in the KKR 1996 Fund L.P., a Delaware limited
partnership (the "Partnership") or NXS Associates L.P., or any affiliates or
affiliates thereof, together no longer having power (A) to elect a majority of
the Board of Directors of the Company or such other corporation which succeeds
to the Company's rights and obligation pursuant to such merger, reorganization,
business combination or liquidation, or (B) if the resulting entity of such
merger, reorganization, business combination or liquidation is not a
corporation, to select the general partner(s) or other persons or entities
controlling the operations and business of the resulting entity.
Section 1.4 - Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.5 - Committee
"Committee" shall mean the Compensation Committee of the Company.
Section 1.6 - Good Reason
"Good Reason" shall mean (i) a reduction in Optionee's base salary
(other than a broad based salary reduction program affecting many members of
management), (ii) a substantial reduction in Optionee's duties and
responsibilities other than as approved by the Chief Executive Officer of the
Company as of the date of this Agreement, (iii) the elimination or reduction of
the Optionee's eligibility to participate in the Company's benefit programs that
is inconsistent with the eligibility of similarly situated employees of the
Company to participate therein, or (iv) a transfer of the Optionee's primary
workplace by more than fifty (50) miles from the workplace as of the date
hereof.
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Section 1.7 - Grant Date
"Grant Date" shall mean the date on which the Options provided for in
this Agreement were granted.
Section 1.8 - Group
"Group" means two or more Persons acting together as a partnership,
limited partnership, syndicate or other group for the purpose of acquiring,
holding or disposing of securities of the Company.
Section 1.9 - Management Stockholder's Agreement
"Management Stockholder's Agreement" shall mean that certain
Management Stockholder's Agreement dated as of May 19, 1997, between the
Optionee and the Company.
Section 1.10 - Options
"Options" shall mean the non-qualified options, to purchase Common
Stock granted under this Agreement.
Section 1.11 - Permanent Disability
The Optionee shall be deemed to have a "Permanent Disability" if the
Optionee is unable to engage in the activities required by the Optionee's job by
reason of any medically determined physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.
Section 1.12 - Person
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
Section 1.13 - Plan
"Plan" shall mean the 1997 Option Plan for Key Employees of Amphenol
and Subsidiaries.
Section 1.14 - Pronouns
The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
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Section 1.15 - Retirement
"Retirement" shall mean retirement at age 65 or over (or such other
age as may be approved by the Board of Directors of the Company) after having
been employed by the Company or a Subsidiary for at least three years after the
Grant Date.
Section 1.16 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.17 - Subsidiary
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations, or group of
commonly controlled corporations (other than the last corporation in the
unbroken chain), then owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
Section 1.18 - Trigger Date
"Trigger Date" shall mean the date hereof.
ARTICLE II
GRANT OF OPTIONS
Section 2.1 - Grant of Options
For good and valuable consideration, on and as of the date hereof the
Company irrevocably grants to the Optionee an Option to purchase any part or all
of an aggregate of __________ shares of its $.001 par value Class A Common Stock
upon the terms and conditions set forth in this Agreement.
Section 2.2 - Exercise Price
Subject to Section 2.4, the exercise price of the shares of stock
covered by the Options (the "Option Exercise Price") shall be $26.00 per share
without commission or other charge.
Section 2.3 - No Right to Employment
Nothing in this Agreement or in the Plan shall confer upon the
Optionee any right to continue in the employ of the Company or any Subsidiary or
Affiliate or shall interfere with or restrict in any way the rights of the
Company and its Subsidiaries or
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Affiliates, which are hereby expressly reserved, to terminate the employment
of the Optionee at any time for any reason whatsoever, with or without Cause.
Section 2.4 - Adjustments in Options Pursuant to Merger, Consolidation, etc.
Subject to Section 9 of the Plan, in the event that the outstanding
shares of the stock subject to an Option are, from time to time, changed into or
exchanged for a different number or kind of shares of the Company or other
securities of the Company by reason of a merger, consolidation,
recapitalization, reclassification, stock split, stock dividend, combination of
shares, or otherwise, the Committee shall make an adjustment in the number and
kind of shares and/or the amount of consideration as to which or for which, as
the case may be, such Option, or portions thereof then unexercised, shall be
exercisable, in such manner as the Committee determines is reasonably necessary
to maintain as nearly as practicable the rights, benefits and obligations that
the parties would have had absent such event. Any such adjustment made by the
Committee shall be final and binding upon the Optionee, the Company and all
other interested persons.
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1 - Commencement of Exercisability
(a) Options shall become exercisable as follows:
Percentage of Option
Date Option Shares Granted As to Which
Becomes Exercisable Option Is Exercisable
After the first anniversary
of the Trigger Date 20%
After the second anniversary
of the Trigger Date 40%
After the third anniversary
of the Trigger Date 60%
After the fourth anniversary
of the Trigger Date 80%
After the fifth anniversary
of the Trigger Date 100%
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Notwithstanding the foregoing, (x) no Options shall become exercisable
prior to the time the Plan is approved by the Company's stockholders, and (y)
subject to the immediately preceding clause (x), the Options shall become
immediately exercisable as to 100% of the shares of Common Stock subject to such
Options immediately prior to a Change of Control (but only to the extent such
Options have not otherwise terminated or become exercisable).
(b) Notwithstanding the foregoing, no Option shall become exercisable
as to any additional shares of Common Stock following the termination of
employment of the Optionee for any reason other than a termination of employment
because of death or Permanent Disability of the Optionee, and any Option (other
than as provided in the next succeeding sentence) which is non-exercisable as of
the Optionee's termination of employment shall be immediately cancelled. In the
event of a termination of employment because of such death or Permanent
Disability, the Options shall immediately become exercisable as to all shares of
Common Stock subject thereto.
Section 3.2 - Expiration of Options
Except as otherwise provided in Section 5 or 6 of the Management
Stockholder's Agreement, the Options may not be exercised to any extent by the
Optionee after the first to occur of the following events:
(a) The tenth anniversary of the Grant Date; or
(b) The first anniversary of the date of the Optionee's termination of
employment by reason of death, Permanent Disability or Retirement; or
(c) The first business day which is fifteen calendar days after the
earlier of (i) 75 days after termination of employment of the Optionee for
any reason other than for death, Permanent Disability or Retirement and
(ii) the delivery of notice by the Company that it does not intend to
exercise its call rights under Section 6 of the Management Stockholder's
Agreement; provided, however, that in any event the Options shall remain
exercisable under this subsection 3.2(c) until at least 45 days after
termination of employment of the Optionee for any reason other than for
death, Permanent Disability or Retirement; or
(d) The date the Option is terminated pursuant to Section 5, 6 or 8(b)
of the Management Stockholder's Agreement; or
(e) If the Committee so elects pursuant to Section 9 of the Plan, the
effective date of a Transaction; provided, however, that the Committee has
provided Optionee with a reasonable period of notice prior to the effective
date of such Transaction in which to exercise Options that have then
neither been fully exercised nor become unexercisable under this Section
3.2.
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ARTICLE IV
EXERCISE OF OPTIONS
Section 4.1 - Person Eligible to Exercise
Except as provided in the Management Stockholder's Agreement, during
the lifetime of the Optionee, only he may exercise an Option or any portion
thereof. After the death of the Optionee, any exercisable portion of an Option
may, prior to the time when an Option becomes unexercisable under Section 3.2,
be exercised by his personal representative or by any person empowered to do so
under the Optionee's will or under the then applicable laws of descent and
distribution.
Section 4.2 - Partial Exercise
Any exercisable portion of an Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.2; provided, however, that any partial exercise shall be for whole shares of
Common Stock only.
Section 4.3 - Manner of Exercise
An Option, or any exercisable portion thereof, may be exercised solely
by delivering to the Secretary or his office all of the following prior to the
time when the Option or such portion becomes unexercisable under Section 3.2:
(a) Notice in writing signed by the Optionee or the other person then
entitled to exercise the Option or portion thereof, stating that the Option
or portion thereof is thereby exercised, such notice complying with all
applicable rules established by the Committee;
(b) Full payment (in cash, by check or by a combination thereof) for
the shares with respect to which such Option or portion thereof is
exercised;
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Optionee or other person then
entitled to exercise such Option or portion thereof, stating that the
shares of stock are being acquired for his own account, for investment and
without any present intention of distributing or reselling said shares or
any of them except as may be permitted under the Securities Act of 1933, as
amended (the "Act"), and then applicable rules and regulations thereunder,
and that the Optionee or other person then entitled to exercise such Option
or portion thereof will indemnify the Company against and hold it free and
harmless from any loss, damage, expense or liability resulting to the
Company if any sale or distribution of the shares by such person is
contrary to the representation and agreement referred to above; provided,
however, that the Committee may, in its absolute discretion, take whatever
additional actions it deems appropriate to ensure the
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observance and performance of such representation and agreement and to
effect compliance with the Act and any other federal or state securities
laws or regulations;
(d) Full payment to the Company of all amounts which, under federal,
state or local law, it is required to withhold upon exercise of the Option;
and
(e) In the event the Option or portion thereof shall be exercised
pursuant to Section 4.1 by any person or persons other than the Optionee,
appropriate proof of the right of such person or persons to exercise the
option.
Without limiting the generality of the foregoing, the Committee may require an
opinion of counsel acceptable to it to the effect that any subsequent transfer
of shares acquired on exercise of an Option does not violate the Act, and may
issue stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of subsection (c) above and the agreements herein.
The written representation and agreement referred to in subsection (c) above
shall, however, not be required if the shares to be issued pursuant to such
exercise have been registered under the Act, and such registration is then
effective in respect of such shares.
Section 4.4 - Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of an Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be validly issued, fully paid and nonassessable. The Company shall not be
required to issue or deliver any certificate or certificates for shares of stock
purchased upon the exercise of an Option or portion thereof prior to fulfillment
of all of the following conditions:
(a) The obtaining of approval or other clearance from any state or
federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(b) The lapse of such reasonable period of time following the exercise
of the Option as the Committee may from time to time establish for reasons
of administrative convenience.
Section 4.5 - Rights as Stockholder
The holder of an Option shall not be, nor have any of the rights or
privileges of, a stockholder of the Company in respect of any shares purchasable
upon the exercise of the Option or any portion thereof unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
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ARTICLE V
MISCELLANEOUS
Section 5.1 - Administration
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee shall be final and binding upon the Optionee, the Company
and all other interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or the Options. In its absolute discretion, the
Board of Directors may at any time and from time to time exercise any and all
rights and duties of the Committee under the Plan and this Agreement.
Section 5.2 - Options Not Transferable
Except as provided in the Management Stockholder's Agreement, neither
the Options nor any interest or right therein or part thereof shall be liable
for the debts, contracts or engagements of the Optionee or his successors in
interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings
(including bankruptcy), and any attempted disposition thereof shall be null and
void and of no effect; provided, however, that this Section 5.2 shall not
prevent transfers by will or by the applicable laws of descent and distribution.
Section 5.3 - Shares to Be Reserved
The Company shall at all times during the term of the Options reserve
and keep available such number of shares of stock as will be sufficient to
satisfy the requirements of this Agreement.
Section 5.4 - Notices
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall,
if the Optionee is then deceased, be given to the Optionee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. Any notice shall
have been deemed duly given when enclosed in a properly sealed envelope or
wrapper addressed as aforesaid,
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deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service, or when sent by
overnight delivery or telecopy.
Section 5.5 - Titles
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
Section 5.6 - Applicability of Plan and Management Stockholder's Agreement
The Options and the shares of Common Stock issued to the Optionee upon
exercise of the Options shall be subject to all of the terms and provisions of
the Plan and the Management Stockholder's Agreement, to the extent applicable to
the Options and such shares. In the event of any conflict between this
Agreement and the Plan, the terms of the Plan shall control. In the event of
any conflict between this Agreement or the Plan and the Management Stockholder's
Agreement, the terms of the Management Stockholder's Agreement shall control.
Section 5.7 - Amendment
This Agreement may be amended only by a writing executed by the
parties hereto which specifically states that it is amending this Agreement.
Section 5.8 - Governing Law
The laws of the State of Delaware (or if the Company reincorporates in
another state, the laws of that state) shall govern the interpretation, validity
and performance of the terms of this Agreement regardless of the law that might
be applied under principles of conflicts of laws.
Section 5.9 - Jurisdiction
Any suit, action or proceeding against the Optionee with respect to
this Agreement, or any judgment entered by any court in respect of any thereof,
may be brought in any court of competent jurisdiction in the State of Delaware
(or if the Company reincorporates in another state, in that state) or New York,
as the Company may elect in its sole discretion, and the Optionee hereby submits
to the non-exclusive jurisdiction of such courts for the purpose of any such
suit, action, proceeding or judgment. The Optionee hereby irrevocably waives
any objections which he may now or hereafter have to the laying of the venue of
any suit, action or proceeding arising out of or relating to this Agreement
brought in any court of competent jurisdiction in the State of Delaware (or if
the Company reincorporates in another state, in that state) or New York, and
hereby further irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in any inconvenient forum.
No suit, action or proceeding against the Company with respect to this Agreement
may be brought in any court, domestic or foreign, or before any similar domestic
or foreign authority other than in a court of competent jurisdiction in the
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State of Delaware (or if the Company reincorporates in another state, in that
state) or New York, and the Optionee hereby irrevocably waives any right which
he may otherwise have had to bring such an action in any other court, domestic
or foreign, or before any similar domestic or foreign authority. The Company
hereby submits to the jurisdiction of such courts for the purpose of any such
suit, action or proceeding. The Optionee hereby irrevocably and unconditionally
waives trial by jury in any legal action or proceeding in relation to this
Agreement and for any counterclaim therein.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
AMPHENOL CORPORATION
By
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Name:
Title:
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Address
________________'s Taxpayer
Identification Number:
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