EXHIBIT 10.32
FORM OF 2000 MANAGEMENT STOCKHOLDER'S AGREEMENT
WHEREAS, this Management Stockholder's Agreement (this "Agreement") is
entered into as of June 6, 2000 (the "BASE DATE") between Amphenol Corporation,
a Delaware Corporation (the "Company"), and Xxxxxx X. Xxxxxx (the "Management
Stockholder") (the Company and the Management Stockholder being hereinafter
collectively referred to as the "Parties").
WHEREAS, the Company has asked certain senior management employees to
purchase a specified number of shares of the Company's common stock (the "Common
Stock") or to agree to retain options awarded under the Company's 1997 Option
Plan or shares of Common Stock to be acquired upon the exercise of such options.
The number of shares of Common Stock or options to be retained as a condition to
receiving an option grant pursuant to the 2000 Option Plan, if any, (the
"Retained Securities") is set forth on Appendix A attached hereto.
WHEREAS, the Company has granted (and in the future may make additional
grants to) certain key employees of the Company (including the Management
Stockholder) options to purchase shares of the Company's Common Stock at a fixed
exercise price per share (the "BASE PRICE") pursuant to the terms of the 2000
Stock Purchase and Option Plan for Key Employees of Amphenol Corporation and
Subsidiaries (the "OPTION PLAN") and the related 2000 Non-Qualified Stock Option
Agreement (the "2000 Options").
WHEREAS, this Agreement is one of several other agreements ("Other
Management Stockholders' Agreements") which have been, or which in the future
will be, entered into between the Company and other individuals who are or will
be key employees of the Company or one of its subsidiaries (collectively, the
"OTHER MANAGEMENT STOCKHOLDERS").
NOW THEREFORE, to implement the foregoing and in consideration of the grant
of the Options and of the mutual agreements contained herein, the Parties agree
as follows:
1. COMMON STOCK; ISSUANCE OF OPTIONS
(a) As requested, the Management Stockholder shall provide the Company with
appropriate evidence of ownership of the Retained Securities.
(b) The Company shall have no obligation to sell any Common Stock upon the
exercise of an option or otherwise to any person who is a resident or
citizen of a state or other jurisdiction in which the sale of Common Stock
to him or her would constitute a violation of the securities or "blue sky"
laws of such jurisdiction.
(c) Subject to the terms and conditions hereinafter set forth as of the
Base Date (which Base Date shall be different for future option awards, if
any), the Company shall issue to the Management Stockholder the 2000
Options and the Parties shall execute and deliver to each other copies of
the 2000 Non-Qualified Stock Option Agreement concurrently with the
issuance of the Options.
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2. MANAGEMENT STOCKHOLDER'S REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) The Management Stockholder agrees and acknowledges that he will not,
directly or indirectly, offer, transfer, sell, assign, pledge, hypothecate or
otherwise dispose of (any such act being referred to herein as a "transfer") any
of the Retained Securities or any of the Common Stock issuable upon exercise of
the 2000 Options (the "Option Stock" and collectively with Retained Securities,
the "Stock") unless such transfer complies with Section 3 of this Agreement. If
the Management Stockholder is an affiliate (as defined under Rule 405 of the
rules and regulations promulgated under the Act and as interpreted by the Board
of Directors of the Company) of the Company (an "Affiliate"), the Management
Stockholder also agrees and acknowledges that he will not transfer any shares of
the Stock unless (i) the transfer is pursuant to an effective registration
statement under the Securities Act of 1933, as amended, and the rules and
regulations in effect thereunder (the "Act"), and in compliance with applicable
provisions of state securities laws or (ii) (A) counsel for the Management
Stockholder (which counsel shall be reasonably acceptable to the Company) shall
have furnished the Company with an opinion, satisfactory in form and substance
to the Company, that no such registration is required because of the
availability of an exemption from registration under the Act and (B) if the
Management Stockholder is a citizen or resident of any country other than the
United States, or the Management Stockholder desires to effect any transfer in
any such country, counsel for the Management Stockholder (which counsel shall be
reasonably satisfactory to the Company) shall have furnished the Company with an
opinion or other advice reasonably satisfactory in form and substance to the
Company to the effect that such transfer will comply with the Securities laws of
such jurisdiction. Notwithstanding the foregoing, the Company acknowledges and
agrees that any of the following transfers are deemed to be in compliance with
the Act and this Agreement and no opinion of counsel is required in connection
therewith: (x) a transfer made pursuant to Sections 4, 8 or 9 hereof, (y) a
transfer upon the death of the Management Stockholder to his executors,
administrators, testamentary trustees, legatees or beneficiaries (the
"Management Stockholder's Estate") or a transfer to the executors,
administrators, testamentary trustees, legatees or beneficiaries of a person who
has become a holder of Stock in accordance with the terms of this Agreement,
provided that it is expressly understood that any such transferee shall be bound
by the provisions of this Agreement and (z) a transfer made after the Base Date
in compliance with the federal securities laws to a trust or custodianship the
beneficiaries of which may include only the Management Stockholder, his spouse
or his lineal descendants (a "Management Stockholder's Trust") provided that
such transfer is made expressly subject to this Agreement.
(b) The certificate (or certificates) representing the Stock shall
bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS
SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION COMPLIES WITH THE PROVISIONS OF THE 2000 MANAGEMENT
STOCKHOLDER'S AGREEMENT BETWEEN AMPHENOL CORPORATION ("THE COMPANY")
AND THE MANAGEMENT STOCKHOLDER NAMED ON THE FACE HEREOF ( A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY)".
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(c) The Management Stockholder acknowledges that he has been advised
that (i) the Retained Securities have been registered on Form S-8 or otherwise
under the Act and that the Company will use its reasonable best efforts to cause
a Registration Statement on Form S-8 covering shares of Common Stock to be
issued pursuant to the exercise of options under the 2000 Option Plan to be
filed by December 6, 2001, (ii) a restrictive legend in the form heretofore set
forth shall be placed on any certificates representing the Stock (iii) a
notation shall be made in the appropriate records of the Company indicating that
the Stock is subject to restrictions on transfer and appropriate stop transfer
restrictions will be issued to the company's transfer agent with respect to the
Stock. If the Management Stockholder is an Affiliate, the Management Stockholder
also acknowledges that (1) the Option Stock must be held indefinitely and the
Management Stockholder must continue to bear the economic risk of any investment
in the Option Stock unless it is subsequently registered under the Act or an
exemption from such registration is available, (2) when and if shares of the
Option Stock may be disposed of without registration in reliance on Rule 144 of
the rules and regulations promulgated under the Act, such disposition can be
made only in limited amounts in accordance with the terms and conditions of such
Rule or (3) if the Rule 144 exemption is not available, public sale without
registration will require compliance with some other exemption under the Act.
(d) If any shares of the Stock are to be disposed of in accordance
with Rule 144 under the Act or otherwise, the Management Stockholder shall
promptly notify the Company of such intended disposition and shall deliver to
the company at or prior to the time of such disposition such documentation as
the Company may reasonably request in connection with such sale and, in the case
of a disposition pursuant to rule 144, shall deliver to the Company an executed
copy of any notice on form 144 required to be filed with the Securities and
Exchange Commission (the "SEC").
(e) The Management Stockholder agrees that, if any shares of the
capital stock of the company are offered to the public pursuant to an effective
registration statement under the Act (other than registration of securities
issued under an employee plan), the Management Stockholder will not effect any
public sale or distribution of any shares of the Stock not covered by such
registration statement from the time of the receipt of a notice from the Company
that the Company has filed or imminently intends to file such registration
statement to, or within 180 days after, the effective date of such registration
statement, unless otherwise agreed to in writing by the Company.
(f) The Management Stockholder represents and warrants that (i) with
respect to Retained Securities, if any, he has received and reviewed the
document(s) comprising the Prospectus (the "Prospectus") relating to Retained
Securities, if any, and the documents referred to therein, certain of which
documents set forth the rights, preferences and restrictions relating to the
Stock and (ii) he has been given the opportunity to obtain any additional
information or documents and to ask questions and receive answers about such
documents, the Company and the business and prospects of the Company which he
deems necessary to evaluate the merits and risks related to his investment in
the retained securities, if any, and to verify the information contained in the
prospectus and the information received as indicated in this Section 2(f)(ii),
and he has relied solely on such information.
(g) The Management Stockholder further represents and warrants that
(i) his financial condition is such that he can afford to bear the economic risk
of holding the Retained Securities,
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if any, for an indefinite period of time and has adequate means for providing
for his current needs and personal contingencies, (ii) he can afford to suffer a
complete loss of his or her investment in the Retained Securities, if any, (iii)
he understands and has taken cognizance of all risk factors related to the
purchase of the Retained Securities, if any, including those set forth in the
Prospectus referred to above, and (iv) his knowledge and experience in financial
and business matters are such that he is capable of evaluating the merits and
risks of his purchase of the Retained Securities, if any, as contemplated by
this Agreement.
3. RESTRICTION ON TRANSFER
Except for transfers permitted (a) by clauses (x), (y) and (z) of
Section 2(a), (b) by a sale of shares of Stock pursuant to an effective
registration statement under the Act filed by the Company, and (c) pursuant to
the Sale Participation Agreement dated as of June 6, 2000 (the "2000 Sales
Participation Agreement"), the Management Stockholder agrees that he will not
transfer any shares of the Stock at any time prior to June 6, 2005. No transfer
of any such shares in violation hereof shall be made or recorded on the books of
the company and any such transfer shall be void and of no effect.
Notwithstanding anything in this Agreement to the contrary, the provisions of
this Section 3 shall lapse and be of no further force and effect upon the
occurrence of a control Event. For purposes of this Section 3, a "Control Event"
shall be deemed to have occurred at such time as (i) a person or group that is
not the Partnership and NXS (as hereinafter defined), or an affiliate of the
Partnership of NXS, holds a greater percentage of the total outstanding shares
of the company (on a fully diluted basis) than that held by the Partnership and
NXS (and any of their affiliates) AND (ii) a person or group that is not the
Partnership, NXS (and any of their affiliates) has the ability to elect more
members of the Board of Directors of the Company than the Partnership, NXS or
any of their affiliates.
4. THE MANAGEMENT STOCKHOLDER'S SALE OF STOCK AND 2000 OPTIONS UPON THE
MANAGEMENT STOCKHOLDER'S RETIREMENT, DEATH OR DISABILITY OR IN CASE
OF CERTAIN TERMINATIONS OF EMPLOYMENT.
Except as otherwise provided herein, Management Stockholder may not
sell or transfer any Stock prior to June 6, 2005 unless (i) the Management
Stockholder has retired from the company or its subsidiary at age 65 or over (or
such other age as may be approved by the Compensation Committee of the Board of
Directors of the Company), or (ii) the Management Stockholder dies, or (iii) the
Management Stockholder becomes permanently disabled. In such instances the
Management Stockholder, the Management Stockholder's Estate or a Management
Stockholder's Trust, as the case may be, shall have the right to sell all or any
portion of the shares of Stock then held by the Management Stockholder, the
Management Stockholder's Estate and/or the Management Stockholder's Trust, as
the case may be in an open market transaction free of any continuing
restrictions under this Agreement. For purposes of this Agreement, the
Management Stockholder shall be deemed to have a "permanent disability" if the
Management Stockholder is unable to engage in the activities required by the
Management Stockholder'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.
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5. DEFINITIONS
(a) For purposes of this Agreement the following definitions shall
apply: "Cause" shall mean (i) the Management Stockholder's willful and continued
failure to perform Management Stockholder's duties with respect to the Company
or its subsidiaries which continues beyond ten days after a written demand for
substantial which continues beyond ten days after a written demand for
substantial performance is delivered to Management Stockholder by the Company or
(ii) misconduct by Management Stockholder involving (x) dishonesty or breach of
trust in connection with Management Stockholder's employment or (y) conduct
which would be a reasonable basis for an indictment of Management Stockholder
for a felony or for a misdemeanor involving moral turpitude or (z) which the
committee determines is likely to result in a demonstrable injury to the
company; and "Good Reason" shall mean (i) reduction in Management Stockholder's
base salary (other than a broad based salary reduction program affecting many
members of management), (ii) a substantial reduction in Management Stockholder'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 Management Stockholder'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 Management Stockholder's primary workplace by more than fifty
(50) miles form the workplaces as of the date hereof.
(b) For purposes of this Agreement, the KKR 1996 Fund L.P., a Delaware
limited partnership shall mean the "Partnership" and NXS Associates, L.P., a
Delaware limited partnership shall mean "NXS".
6. STOCK ISSUED TO MANAGEMENT STOCKHOLDER UPON EXERCISE OF STOCK 2000
OPTIONS; TERMINATION OF 2000 OPTIONS
(a) The Company may from time to time grant to the Management
Stockholder, in addition of the 2000 Options, options under the 2000 Option Plan
to purchase shares of Common Stock at a different Base Price. Subsequent option
awards, if any, under the 2000 Option Plan shall be subject to the terms and
conditions of this Agreement.
(b) The Company will use its reasonable best
efforts to cause a Registration Statement on Form S-8 covering shares of Common
Stock to be issued pursuant to the exercise of options under the 2000 Option
Plan to be filed by December 6, 2001.
7. THE COMPANY'S REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to the Management Stockholder
that (i) this Agreement has been duly authorized, executed and delivered by the
Company and (ii) the Stock, when issued and delivered in accordance with the
terms hereof, will be duly and validly issued, fully paid and nonassessable.
(b) The company will file the reports required to be filed by it under
the Act and the Exchange Act and the rules and regulations adopted by the SEC
thereunder, to the extent required from time to time to enable the Management
Stockholder to sell shares of Stock without registration under the Act within
the limitations of the exemptions provided by (A) Rule 144 under the Act, as
such Rule may be amended from time to time, or (B) any similar rule or
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regulation hereafter adopted by the SEC. Notwithstanding anything contained in
this Section 7(b), the Company may de-register under Section 12 of the Act if it
is then permitted to do so pursuant to the Exchange Act and the rules and
regulations thereunder and, is 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 under the Act to be available. Nothing in this Section 7(b)
shall be deemed to limit in any manner the restrictions on sales of Stock
otherwise contained in this Agreement.
8. "PIGGYBACK " REGISTRATION RIGHTS
(a) The company will promptly notify the Management Stockholder in
writing (a "Notice") of any proposed registration ( a "Proposed Registration")
in connection with any offering of shares of Common Stock held by the
Partnership of NXS or their affiliates. If within 2 business days of the receipt
by the Management Stockholder of such Notice, the Company receives from the
Management Stockholder, the Management Stockholder's Estate or the Management
Stockholder's Trust a written request ( a "Request") to register and sell shares
of Stock held by the Management Stockholder, the Management Stockholder's Estate
or the Management Stockholder's Trust (which Request to register and sell will
be irrevocable regardless of the final offering price and underwriters
discounts, unless otherwise mutually agreed to in writing by the Management
Stockholder and the Company), shares of Stock will be so registered and sold as
provided in this Section 8; PROVIDED, HOWEVER, that for each such registration
statement only one Request, which shall be executed by the Management
Stockholder, the Management Stockholder's Estate or the Management Stockholder's
Trust, as the case may be, may be submitted for all registrable securities held
by the Management Stockholder, the Management Stockholder's Estate or the
Management Stockholder's Trust.
(b) The maximum number of shares of Stock which will be registered
pursuant to a Request will be the lowest of (i) the number of shares of Stock
then held by the Management Stockholder (which for purposes of this subparagraph
(b) shall include shares held by the Management Stockholder's Estate or a
Management Stockholder's Trust), including all shares of Stock which the
Management Stockholder is then entitled to acquire under an unexercised Option
to the extent then vested and exercisable or (ii) the maximum number of shares
of Stock which the Company can register in the Proposed Registration without
adverse effect on the offering in the view of the managing underwriters (reduced
pro rata with all Other Management Stockholders) as more fully described in
subsection (c) of this Section 8 or (iii) the maximum number of shares which the
Management Stockholder and all Other Management Stockholders (pro rata based
upon the aggregate number of shares of Stock the Management Stockholder and all
Other Management Stockholders have requested be registered) are permitted to
register under the 2000 Registration Rights Agreement.
(c) If a Proposed Registration involves an underwritten offering and
the managing underwriter advises the company that, in its opinion, the number of
shares of Stock requested to be included in the Proposed 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 shares of Stock
offered to be public as contemplated by the Company, then the Company will
include in the Propose Registration (i) first, 100% of the shares of Stock
requested to be included in such registration which, in the opinion of such
managing underwriter, can be sold without having the
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adverse effect referred to above, the number of shares of Stock which the
selling stockholders, including without limitation, the Management Stockholder
and Other Management Stockholders, have requested to be included in the Proposed
Registration, such amount to be allocated pro rata among all requesting selling
stockholders on the basis of the relative number of shares of Stock then held by
each such selling stockholder (provided that any shares thereby allocated to any
such selling stockholders that exceed such selling stockholder's request will be
reallocated among the remaining requesting selling stockholders in a like
manner).
(d) Upon delivering a Request, the Management Stockholder will, if
requested by the company, execute and deliver a custody agreement and power of
attorney in form and substance satisfactory to the Company with respect to the
shares of Stock to be registered pursuant to this Section 8 (a "CUSTODY
AGREEMENT AND POWER OF ATTORNEY"). The Custody Agreement and Power of Attorney
will provide, among other things, that the Management Stockholder will deliver
to and deposit in custody with the custodian and attorney-in-fact named therein
a certificate or and deposit in custody with the custodian and attorney-in-fact
named therein a certificate or certificates representing such shares of Stock
(duly endorsed in blank by the registered owner or owners thereof or accompanied
by duly executed stock powers in blank) and irrevocably appoint said custodian
and attorney-in-fact as the Management Stockholder's agent and attorney-in-fact
with full power and authority to act under the Custody Agreement and Power of
Attorney on the Management Stockholder's behalf with respect to the matters
specified therein.
(e) The Management Stockholder agrees that he or she will execute such
other agreements as the Company may reasonably request to further evidence the
provisions of this Section 8.
(f) Notwithstanding anything herein to the contrary, the Committee
acting in its sole discretion may elect not to notify any Management Stockholder
of a Proposed Registration or may elect not to include any Management
Stockholder's Stock in the Proposed Registration notwithstanding Management
Stockholder's Request and absent an indication from the managing underwriters
that the inclusion of such Management Stockholder's Stock in the Proposed
Registration will have an adverse effect on the offering; PROVIDE HOWEVER that
should the committee elect not to provide notice of a Proposed Registration to
such Management Stockholder or not to include any such Stock in the Proposed
Registration to such Management Stockholder or not to include any such Stock in
the Proposed Registration, the Committee shall cause the company to offer to
purchase such Stock from any such Management Stockholder at the price the
Management Stockholder would have received had he received notice of and/or
elected to participate in the Proposed Registration.
9. RIGHTS TO NEGOTIATE PURCHASE.
Nothing in this Agreement shall be deemed to restrict or prohibit the
company from purchasing shares of Stock or 2000 Options from the Management
Stockholder, at any time, upon such terms and conditions, and for such price, as
may be mutually agreed upon between the Parties.
10. NOTICE OF CHANGE OF BENEFICIARY.
Immediately prior to any transfer of Stock to a Management
Stockholder's Trust, the Management Stockholder shall provide the company with a
copy of the instruments creating the Management Stockholder's Trust and with the
identity of the beneficiaries of the Management
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Stockholder's Trust. The Management Stockholder shall notify the Company
immediately prior to any change in the identity of any beneficiary of the
Management Stockholder's Trust.
11. EXPIRATION OF CERTAIN PROVISIONS.
The provisions contained in Sections 2 (e), 3 and 4 of this Agreement,
and the portion of any other provisions of this Agreement which incorporate the
provisions of such Sections, shall terminate and be of no further force or
effect upon (i) the sale of all or substantially all of the assets of the
Company to a person or group that 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 (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 Partnership or NXS or any affiliate or affiliates thereof,
together no longer having the 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 obligations 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. Such provisions
and the portion of any other provisions of this Agreement which incorporate
such provisions shall also terminate and be of no further force and effect if
the Management Stockholder's employment is terminated.
12. RECAPITALIZATIONS, ETC.
The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the Stock or the 2000 Options, to any and all
shares of capital stock of the Company or any capital stock, partnership units
or any other security evidencing ownership interests in any successor or assign
of the Company (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect of, in exchange for, or substitution of the Stock
or the 2000 Options, by reason of any stock dividend, split, reverse split,
combination, recapitalization, liquidation, reclassification, merger,
consolidation or otherwise.
13. MANAGEMENT STOCKHOLDER'S EMPLOYMENT BY THE COMPANY.
Nothing contained in this Agreement or in any other agreement entered
into by the Company and the Management Stockholder contemporaneously with the
execution of this Agreement (i) obligates the Company or any subsidiary of the
Company to employ the Management Stockholder in any capacity whatsoever of (ii)
prohibits or restricts the Company (or any such subsidiary) from terminating the
employment of the Management Stockholder at any time or for any reason
whatsoever, with or without Cause, and the Management Stockholder hereby
acknowledges and agrees that neither the Company nor any other person has made
any representations or promises whatsoever to the Management Stockholder
concerning the Management Stockholder's employment or continued employment by
the Company or any subsidiary of the Company.
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14. STATE SECURITIES LAWS.
The Company hereby agrees to use its best efforts to comply with all
state securities or "blue sky" laws which might be applicable to the sale of the
Stock and the issuance of the 2000 Options to the Management Stockholder.
15. BINDING EFFECT.
The provisions of this Agreement shall be binding upon and accrue to
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. In the case of a transferee permitted
under Section 2(a) hereof, such transferee shall be deemed the Management
Stockholder hereunder; provided, however, that no transferee (including without
limitation, transferees referred to in Section 2(a) hereof) shall derive any
rights under this Agreement unless and until such transferee has delivered to
the Company a valid undertaking and becomes bound by the terms of this
Agreement.
16. AMENDMENT
This Agreement may be amended only by a written instrument signed by
the Parties hereto.
17. APPLICABLE LAW.
The laws of the State of Delaware 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 law. Any suit, action or
proceeding against the Management Stockholder, 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 Connecticut, and the
Management Stockholder hereby submits to the non-exclusive jurisdiction of such
courts for the purpose of any such suit, action, proceeding or judgment. By the
execution and delivery of this Agreement, the Management Stockholder appoints
The Corporation Trust Company, at its office in Wilmington, Delaware, as the
case may be, as his agent upon which process may be served in any such suit,
action or proceeding. Service of process upon such agent, together with notice
of such service given to the Management Stockholder in the manner provided in
Section 20 hereof, shall be deemed in every respect effective service of process
upon him in any suit, action or proceeding. Nothing herein shall in any way be
deemed to limit the ability of the Company to serve any such writs, process or
summonses in any other manner permitted by applicable law or to obtain
jurisdiction over the management Stockholder, in such other jurisdictions and in
such manner, as may be permitted by applicable law. The Management Stockholder
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 Connecticut, 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 State of Connecticut, and the Management
Stockholder hereby irrevocably waives any right
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which he may otherwise have led 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, or proceeding. Each Party hereto hereby irrevocably and
unconditionally waives trial by jury in any legal action or proceeding in
relation to this Agreement and for any counterclaim therein.
18. MISCELLANEOUS.
In this Agreement (i) all references to "dollars" or "$" are to United
States dollars and (ii) the word "or" is not exclusive. If any provision of this
Agreement shall be declared illegal, void or unenforceable by any court of
competent jurisdiction, the other provisions shall not be affected, but shall
remain in full force and effect.
19. NOTICES.
All notices and other communications provided for herein shall be in
writing and shall be deemed to have been duly given if delivered by hand
(whether by overnight courier or otherwise) or sent by overnight delivery or
telecopy, to the Party to whom it is directed.
(a) If to the Company, to it at the following address:
Amphenol Corporation
000, Xxxx xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0000 Xxxx Xxxx Xxxx Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) If to the Management Stockholder, to him at the address set forth
below his signature:
or at such other address as either Party shall have specified by
notice in writing to the other.
20. COVENANT NOT TO COMPETE: CONFIDENTIAL INFORMATION
(a) In consideration of the Company entering into this Agreement with
the Management Stockholder, the Management Stockholder hereby agrees that for so
long as the Management Stockholder is employed by the Company or one of its
subsidiaries and for a period of one year
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thereafter (the "Noncompete Period"), the Management Stockholder shall not,
directly or indirectly, engage in the production, sale or distribution of any
product produced, sold, distributed or which is in development by the company or
its subsidiaries on the date hereof or during the Noncompete Period anywhere in
the world which the Company or its subsidiaries is doing business other than
through the Management Stockholder's employment with the Company or any of its
subsidiaries.
(b) In the event that the Management Stockholder's employment is
terminated by the Management Stockholder for Good Reason or by the Company
without Cause, then as additional required consideration for the Management
Stockholder's covenant not to compete, the Company shall pay the Management
Stockholder salary continuation in an amount equal to 50% of such Management
Stockholder's base salary on the date of the termination of the Management
Stockholder's employment for the Noncompete Period. In the event that the
Management Stockholder's employment with the Company or any of its subsidiaries
is terminated by the Management Stockholder without Good Reason or by the
Company with Cause, then the Company shall not be required to pay the Management
Stockholder any additional consideration for the Management Stockholder's
covenant not to compete.
(c) At the Company's option, the Noncompete Period may be extended for
an additional one year period if (i) within nine months of the termination of
the Management Stockholder's employment, the Company gives the Management
Stockholder notice of such extension and (ii) beginning with the first
anniversary of such termination, the Company agrees to continue to pay the
Management Stockholder salary continuation an amount equal to 50% of the
Management Stockholder's base salary. Each amount referred to in the preceding
two paragraphs shall be paid in installments in a manner consistent with the
then current salary payment policies of the Company. For purposes of this
Agreement, the phrase "directly or indirectly engage in" shall include any
direct or indirect ownership or profit participation interest in such
enterprise, whether as an owner, stockholder, partner, joint venture of
otherwise, and shall include any direct or indirect participation in such
enterprise as a consultant, licensor of technology or otherwise. During the
Noncompete Period the Management Stockholder shall be free to work in any
employment approved by the Chief Executive Officer of the Company which approval
shall not be unreasonably withheld. Such approved employment shall not serve to
reduce any payments that the Management Stockholder is receiving pursuant to
this provision.
(d) The Management Stockholder will not disclose or use at any time any
Confidential Information (as defined below) of which the Management Stockholder
is or becomes aware, whether or not such information is developed by him, except
to the extent that such disclosure or use is directly related to and required by
the Management Stockholder's performance of duties, if any, assigned to the
Management Stockholder by the company. As used in this Agreement, the term
"Confidential Information" means information that is not generally known to the
public and that is used, developed or obtained by the Company or its
subsidiaries in connection with its business, including but not limited to (i)
products or services, (ii) fees, costs and pricing structures, (iii) designs,
(iv) computer software, including operating systems, applications and program
listings, (v) flow charts, manuals and documentation, (vi) data bases, (vii)
accounting and business methods, (vii) inventions, devices, new developments,
methods and processes, whether patentable or unpatentable and whether or not
reduced to practice, (ix) customers, vendors and clients and customer, vendors
or clients lists, (x) personnel information, (xi) other copyrightable works,
(xii) all technology and trade secrets, and (xiii) all similar and related
information in whatever form. Confidential Information will not include any
information that has been published in a form generally available to the public
prior to the date the Management
12
Stockholder proposes to disclose or use such information. The Management
Stockholder acknowledges and agrees that all copyrights, works, inventions,
innovations, improvements, developments, patents, trademarks and all similar or
related information which relate to the actual or anticipated business of the
Company and its subsidiaries (including its predecessors) and conceived,
developed or made by the Management Stockholder while employed by the Company or
its subsidiaries belong to the Company. The Management Stockholder will perform
all actions reasonably requested by the Company. The Management Stockholder will
perform all actions reasonably requested by the company (whether during or after
employment with the Company or the Noncompete Period) to establish and confirm
such ownership at the Company's expense (including without limitation
assignments, consents, powers of attorney and other instruments). If the
Management Stockholder is bound by any other agreement with the Company
regarding the use or disclosure of Confidential Information, the provisions of
this Agreement shall be read in such a way as to further restrict and not to
permit any more extensive use or disclosure of confidential information.
(e) Notwithstanding clauses (a), (b), (c) and (d) above, if at any
time a court holds that the restrictions stated in such clauses (a), (b), (c)
and (d) are unreasonable or otherwise unenforceable under circumstances then
existing, the parties hereto agree that the maximum period, scope or geographic
area determined to be reasonable under such circumstances by such court will be
substituted for the stated period, scope or area. Because the Management
Stockholder's services are unique and because the Management Stockholder has had
access to Confidential Information, the parties hereto agree that money damages
will be an inadequate remedy for any breach of this Agreement. In the event a
breach or threatened breach of this Agreement, the Company or its successors or
assigns may, in addition to other rights and remedies existing in their favor,
apply to any court of competent jurisdiction for specific performance and/or
injunctive relief in order to enforce, or prevent any violations of, the
provisions hereof (without the posting of a bond or other security).
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
AMPHENOL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
Chairman, President & CEO
MANAGEMENT STOCKHOLDER
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Print Name: Xxxxxx X. Xxxxxx
00 Xxxx Xxxx
XXXXXXXXXX, XX 00000
-----------------------------
Home Address
000-000-0000
-----------------------------
Home Phone (Please Complete)
N/A
-----------------------------
Home FAX (Please Complete)
13
APPENDIX A
RETAINED SHARES/OPTIONS
33,333 Options
