EXHIBIT 2.2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of November 22, 1998 (the
"Agreement"), between AMP INCORPORATED, a Pennsylvania corporation
("Company"), and Beta Zeno Corp., a Pennsylvania corporation ("Grantee").
RECITALS
A. Company, Grantee and Alpha Zeno Corp., a Pennsylvania
corporation and a wholly-owned subsidiary of Grantee ("Merger Sub"), have
entered into an Agreement and Plan of Merger, dated as of the date hereof
(the "Merger Agreement"; defined terms used but not defined herein have the
meanings set forth in the Merger Agreement), providing for, among other
things, the merger of Merger Sub with and into Company pursuant to the
terms of the Merger Agreement; and
B. As a condition and inducement to the willingness of Grantee
and Merger Sub to enter into the Merger Agreement, Grantee has requested
that Company agree, and Company has agreed, to grant Grantee the Option (as
defined below).
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, Company and Grantee
agree as follows:
1. Grant of Option. Subject to the terms and conditions set
forth herein, Company hereby grants to Grantee an irrevocable option (the
"Option") to purchase up to 43,500,000 shares (the "Option Shares") of
common stock, without par value, of Company, including the associated
rights ("Company Common Stock"), or such lesser number of shares of Company
Common Stock constituting 19.9% of the issued and outstanding shares of
Company Common Stock on the date the Option is first exercised, at an
exercise price of $51.00 (as adjusted as set forth herein) per Option Share
(the "Exercise Price").
2. Exercise of Option. (a) Grantee may exercise the Option,
with respect to any or all of the Option Shares at any one time or from
time to time, subject to the provisions of Section 2(c), upon the
occurrence of an Exercise Event (as defined below). Subject to the last
sentence of this Section 2(a), the Option will terminate and be of no
further force and effect upon the earliest to occur of (i) the Effective
Time, (ii) termination of the Merger Agreement pursuant to Section 7.01(c),
7.01(d)(ii) or 7.01(i) of the Merger Agreement or termination of the Merger
Agreement by the Company pursuant to Section 7.01(f), 7.01(g) or 7.01(h) of
the Merger Agreement and (iii) the earlier of (x) twelve months after the
date on which an Exercise Event occurs and (y) the third business day
following the first anniversary of termination of the Merger Agreement, but
in no event, in the case of clause (iii)(x) or (y), sooner than eighteen
months and four business days after the date hereof. Any purchase of Option
Shares upon exercise of the Option will be subject to compliance with the
HSR Act and the obtaining or making of any consents, approvals, orders,
notifications or authorizations, the failure of which to have obtained or
made would have the effect of making the issuance of Option Shares illegal
(the "Regulatory Approvals") and no preliminary or permanent injunction or
other order by any court of competent jurisdiction prohibiting or otherwise
restraining such issuance shall be in effect. "Exercise Event" means any
event as a result of which Tyco International Ltd. ("Tyco") is entitled to
receive the Fee (as defined in the Merger Agreement) pursuant to Section
7.03 of the Merger Agreement. Notwithstanding the termination of the
Option, Grantee will be entitled to purchase the Option Shares if it has
exercised the Option in accordance with the terms hereof prior to the
termination of the Option, and the termination of the Option will not
affect any rights hereunder which by their terms do not terminate or expire
prior to or as of such termination.
(b) In the event that Grantee wishes to exercise the
Option, it will send to Company a written notice (an "Exercise Notice"; the
date of which being herein referred to as the "Notice Date") to that effect
which Exercise Notice will also specify the number of Option Shares, if
any, Grantee wishes to purchase pursuant to this Section 2(b), the number
of Option Shares, if any, with respect to which Grantee wishes to exercise
its Cash-Out Right (as defined herein) pursuant to Section 8, the
denominations of the certificate or certificates evidencing the Option
Shares which Grantee wishes to purchase pursuant to this Section 2(b) and a
date not earlier than 10 business days nor later than 20 business days from
the Notice Date for the closing (an "Option Closing") of such purchase (an
"Option Closing Date"). Any Option Closing will be at an agreed location
and time in New York, New York on the applicable Option Closing Date or at
such later date as may be necessary so as to comply with Section 2(a).
(c) Notwithstanding anything to the contrary contained
herein, any exercise of the Option and purchase of Option Shares shall be
subject to compliance with applicable laws and regulations, which may
prohibit the purchase of all the Option Shares specified in the Exercise
Notice without first obtaining or making certain Regulatory Approvals. In
such event, if the Option is otherwise exercisable and Grantee wishes to
exercise the Option, the Option may be exercised in accordance with Section
2(b), and Grantee shall acquire the maximum number of Option Shares
specified in the Exercise Notice that Grantee is then permitted to acquire
under the applicable laws and regulations, and if Grantee thereafter
obtains the Regulatory Approvals to acquire the remaining balance of the
Option Shares specified in the Exercise Notice, then Grantee shall be
entitled to acquire such remaining balance. Company agrees to use its
reasonable best efforts to assist Grantee in seeking the Regulatory
Approvals.
In the event (i) Grantee receives official notice that a
Regulatory Approval required for the purchase of any Option Shares will not
be issued or granted or (ii) such Regulatory Approval has not been issued
or granted within six months of the date of the Exercise Notice, Grantee
shall have the right to exercise its Cash-Out Right pursuant to Section 8
with respect to the Option Shares for which such Regulatory Approval will
not be issued or granted or has not been issued or granted.
3. Payment and Delivery of Certificates. (a) At any Option
Closing, Grantee will pay to Company an amount equal to the Exercise Price
multiplied by the number of Option Shares to be purchased at such Option
Closing, at Grantee's sole election (but subject to applicable restrictions
under the HSR Act and compliance with other applicable laws), (i) in
immediately available funds by wire transfer to a bank account designated
in writing by Company or (ii) in shares of common stock, par value $0.20
per share, of Tyco ("Tyco Common Shares"), valued at the average of the
reported closing prices for Tyco Common Shares on the New York Stock
Exchange for the five trading days ending on the trading day before
exercise. If Grantee notifies Company of its desire to use Tyco Common
Shares as provided above, Company shall make promptly all filings, required
by applicable law.
(b) At any Option Closing, simultaneously with the
delivery of immediately available funds or Tyco Common Shares as provided
in Section 3(a), Company will deliver to Grantee a certificate or
certificates (or other appropriate evidence under the direct registration
system) representing the Option Shares to be purchased at such Option
Closing, which Option Shares will be free and clear of all liens, claims,
charges and encumbrances of any kind whatsoever. If at the time of issuance
of Option Shares pursuant to an exercise of the Option hereunder, Company
shall have issued any rights or similar securities under the Rights
Agreement or any similar plan or arrangement ("Shareholder Rights"), then
each Option Share issued pursuant to such exercise will also represent such
rights or similar securities with terms substantially the same as and at
least as favorable to Grantee as are provided under the Rights Agreement or
any similar plan or arrangement then in effect.
(c) Certificates (or other appropriate evidence under the
direct registration system) for the Option Shares delivered at an Option
Closing will have typed or printed thereon a restrictive legend which will
read substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1993, AND MAY BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IF SO REGISTERED OR IF
ANY EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. SUCH SECURITIES
ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH
IN THE STOCK OPTION AGREEMENT, DATED AS OF NOVEMBER 22, 1998, A COPY
OF WHICH MAY BE OBTAINED FROM THE SECRETARY OF AMP INCORPORATED AT
ITS PRINCIPAL EXECUTIVE OFFICES."
It is understood and agreed that (i) the reference to restrictions arising
under the Securities Act of 1933, as amended (the "Securities Act"), in the
above legend will be removed by delivery of substitute certificate(s) (or
other appropriate evidence under the direct registration system) without
such reference if such Option Shares have been sold in compliance with the
registration and prospectus delivery requirements of the Securities Act,
such Option Shares have been sold in reliance on and in accordance with
Rule 144 under the Securities Act, or Grantee has delivered to Company a
copy of a letter from the staff of the SEC, or an opinion of counsel in
form and substance reasonably satisfactory to Company and its counsel, to
the effect that such legend is not required for purposes of the Securities
Act and (ii) the reference to restrictions pursuant to this Agreement in
the above legend will be removed by delivery of substitute certificate(s)
(or other appropriate evidence under the direct registration system)
without such reference if the Option Shares evidenced by certificate(s)
containing such reference have been sold or transferred in compliance with
the provisions of this Agreement under circumstances that do not require
the retention of such reference.
4. Incorporation of Representations and Warranties of Company.
The representations and warranties of Company contained in Article II of the
Merger Agreement are hereby incorporated by reference herein with the same
force and effect as though made
pursuant to this Agreement.
5. Additional Representations and Warranties of Company.
Company hereby represents and warrants to Grantee as follows:
(a) Corporate Authorization. Company has the corporate
power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Company, and no other
corporate proceedings on the part of Company are necessary to authorize
this Agreement and the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by Company, and assuming this
Agreement constitutes a valid and binding agreement of Grantee, this
Agreement constitutes a valid and binding agreement of Company, enforceable
against Company in accordance with its terms (except insofar as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, or by principles governing the availability of equitable
remedies).
(b) Authorized Stock. Company has taken all necessary
corporate and other action to authorize and reserve and, subject to the
expiration or termination of any required waiting period under the HSR Act,
to permit it to issue, and, at all times from the date hereof until the
obligation to deliver Option Shares upon the exercise of the Option
terminates, shall have reserved for issuance, upon exercise of the Option,
shares of Company Common Stock necessary for Grantee to exercise the
Option, and Company will take all necessary corporate action to authorize
and reserve for issuance all additional shares of Company Common Stock or
other securities which may be issued pursuant to Section 7 upon exercise of
the Option. The shares of Company Common Stock to be issued upon due
exercise of the Option, including all additional shares of Company Common
Stock or other securities which may be issuable upon exercise of the Option
or any other securities which may be issued pursuant to Section 7, upon
issuance pursuant hereto, will be duly and validly issued, fully paid and
nonassessable, and will be delivered free and clear of all liens, claims,
charges and encumbrances of any kind or nature whatsoever, including
without limitation any preemptive rights of any stockholder of Company.
6. Representations and Warranties of Grantee. Grantee hereby
represents and warrants to Company that:
(a) Corporate Authorization. Grantee has the corporate
power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by authority of the Board of Directors of Grantee, and
no other corporate proceedings on the part of Grantee are necessary to
authorize this Agreement and the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Grantee, and
assuming this Agreement constitutes a valid and binding agreement of
Company, this Agreement constitutes a valid and binding agreement of
Grantee, enforceable against Grantee in accordance with its terms (except
insofar as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, or by principles governing the availability of equitable
remedies).
(b) Purchase Not For Distribution. Any Option Shares or
other securities acquired by Grantee upon exercise of the Option will not
be, and the Option is not being, acquired by Grantee with a view to the
public distribution thereof. Neither the Option nor any of the Option
Shares will be offered, sold, pledged or otherwise transferred except in
compliance with, or pursuant to an exemption from, the registration
requirements of the Securities Act.
7. Adjustment upon Changes in Capitalization, Etc. (a) In the
event, on one or more occasions, of any changes in Company Common Stock by
reason of a stock split, reverse stock split, stock dividend (including any
dividend or distribution of securities convertible into Company Common
Stock), distribution, exercise or exchange of Rights, reorganization,
recapitalization, splitup, division, combination, share exchange or like
event, the class and number of securities subject to the Option, will be
adjusted appropriately, and proper provision will be made in the agreements
governing such transaction, so that Grantee will receive upon exercise of
the Option the number and class of shares or other securities or property,
cash or other form of consideration that Grantee would have received with
respect to Company Common Stock if the Option had been exercised
immediately prior to such event or the record date therefor, as applicable.
The Exercise Price will also be appropriately adjusted in any such case.
(b) Without limiting the provisions of clause (a) above
or the parties' relative rights and obligations under the Merger Agreement,
in the event that the Company enters into an agreement (i) to consolidate
with or merge with or into any person, other than Grantee or any other
subsidiary of Tyco, and Company will not be the continuing or surviving
corporation in such consolidation or merger, (ii) to permit any person,
other than Grantee or any other subsidiary of Tyco, to merge with or into
Company and Company will be the continuing or surviving corporation, but in
connection with such merger, the shares of Company Common Stock outstanding
immediately prior to the consummation of such merger will be changed into
or exchanged for stock or other securities of Company or any other person
or cash or any other property, or the shares of Company Common Stock
outstanding immediately prior to the consummation of such merger will,
after such merger represent less than 51% of the outstanding voting
securities of the merged company, or (iii) to sell or otherwise transfer
all or substantially all of its assets to any person, other than Grantee or
any other subsidiary of Tyco, then, and in each such case, the agreement
governing such transaction will make proper provision so that the Option
will, upon the consummation of any such transaction and upon the terms and
condition set forth herein, be converted into, or exchanged for,
an option with identical terms appropriately adjusted to acquire the number
and class of shares or other securities or property that Grantee would have
received in respect of Company Common Stock if the Option had been
exercised immediately prior to such consolidation, merger, sale, or
transfer, or the record date therefor, as applicable and make any other
necessary adjustments. If the holders of the Company Common Stock may elect
from choices the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer, then for the
purpose of this Section 7(b) the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer
shall be the available choice with the greatest aggregate value. For
purposes of this Option, the term "merger" shall be deemed to include a
share exchange pursuant to Section 1931 of the Pennsylvania Business
Corporation Law of 1988 ("PBCL") or division pursuant to Section 1951 et
seq. of the PBCL.
8. Cash-Out Right. If, at any time during the period when the
Option is exercisable in accordance with Section 2, Grantee sends to
Company an Exercise Notice indicating Grantee's election to exercise its
right (the "Cash-Out Right") pursuant to this Section 8, then Company shall
pay to Grantee in exchange for the cancellation of the Option with respect
to such number of Option Shares as Grantee specifies in the Exercise
Notice, an amount in cash equal to such number of Option Shares multiplied
by the difference between (i) the average closing price for the ten NYSE
trading days commencing on the NYSE trading day immediately preceding the
Notice Date, per share of Company Common Stock as reported on the NYSE
Composite Transactions Tape (or, if not listed on the NYSE, as reported on
any other national securities exchange or national securities quotation
system on which Company Common Stock is listed or quoted, as reported in
The Wall Street Journal (Northeast edition), or, if not reported thereby,
any other authoritative source) or, if Company is at the time of such
exercise no longer a Registered Corporation (as defined in Section 2502 of
the PBCL), the price per share paid to the shareholders of the Company in
the transaction which caused the Company Common Stock to cease being
required to be registered under the Securities Exchange Act of 1934 (the
"Closing Price") and (ii) the Exercise Price. Notwithstanding the
termination of the Option, Grantee will be entitled to exercise its rights
under this Section 8 if it has exercised such rights in accordance with the
terms hereof prior to the termination of the Option.
9. Profit Limitations. (a) Notwithstanding any other provision
of this Agreement, in no event shall the Total Option Profit (as
hereinafter defined) exceed in the aggregate $301 million minus any Fee
actually received by Tyco pursuant to the terms of the Merger Agreement
(such amount, the "Profit Limit") and, if any payment to be made to Grantee
otherwise would cause such aggregate amount to be exceeded, the Grantee, at
its sole election, shall either (i) reduce the number of shares of Company
Common Stock subject to this Option, (ii) deliver to the Company for
cancellation Option Shares previously purchased by Grantee, (iii) pay cash
to Company, (iv) deliver the undertaking described in Section 9(f) or (v)
any combination thereof, so that the Total Option Profit shall not exceed
the Profit Limit after taking into account the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, this
Option may not be exercised for a number of shares of Company Common Stock
as would, as of the date of exercise, result in a Notional Total Option
Profit (as hereinafter defined) which would exceed in the aggregate
the Profit Limit and, if it otherwise would exceed such amount, the
Grantee, at its sole election, shall on or prior to the date of exercise
either (i) reduce the number of shares of Company Common Stock subject to
such exercise, (ii) deliver to Company for cancellation Option Shares
previously purchased by Grantee, (iii) pay cash to Company, (iv) deliver
the undertaking described in Section 9(f) or (v) any combination thereof,
so that the Notional Total Option Profit shall not exceed the Profit Limit
after taking into account the foregoing actions, provided that this
paragraph (b) shall not be construed as to restrict any exercise of the
Option that is not prohibited hereby on any subsequent date.
(c) As used herein and subject to Section 9(f), the term "Total
Option Profit" shall mean the aggregate amount (before taxes) of the
following: (i) any amount received by Grantee pursuant to the Cash-Out
Right and (ii) (x) the net consideration, if any, received by Grantee
pursuant to the sale of Option Shares (or any other securities into which
such Option Shares are converted or exchanged) to any unaffiliated party,
valuing any non-cash consideration at its fair market value (as defined
below), less (y) the Exercise Price and any cash paid by Grantee to Company
pursuant to Section 9(a)(iii) or Section 9(b)(iii), as the case may be.
(d) As used herein and subject to Section 9(f), the term
"Notional Total Option Profit" with respect to any number of shares of
Company Common Stock as to which Grantee may propose to exercise the Option
shall be the aggregate of (i) the Total Option Profit determined under
paragraph (c) above with respect to prior exercises and (ii) Total Option
Profit with respect to such number of shares of Company Common Stock as to
which Grantee proposes to exercise and all other Option Shares held by
Grantee and its affiliates as of such date, assuming that all such shares
were sold for cash at the closing market price for Company Common Stock as
of the close of business on the preceding trading day (less customary
brokerage commissions or underwriting discounts).
(e) As used herein, the "fair market value" of any non-cash
consideration consisting of:
(i) securities listed on the national securities exchange
or traded on the NASDAQ shall be equal to the average closing
price per share of such security as reported on such exchange
or NASDAQ for the five trading days after the date of
determination; and
(ii) consideration which is other than cash or securities
of the form specified in clause (i) above shall be determined
by a nationally recognized independent investment banking firm
mutually agreed upon by the parties within five business days
of the event requiring selection of such banking firm, provided
that if the parties are unable to agree within two business
days after the date of such event as to the investment banking
firm, then the parties shall each select one firm, and those
firms shall select a third nationally recognized independent
investment banking firm, which third firm shall make such
determination.
(f) Total Option Profit and Notional Total Option Profit shall
be reduced by any amount that is subject to recapture by the Company
pursuant to Subchapter H of the PBCL if Grantee pays such amount or such
obligation has matured and Grantee acknowledges its liability. In addition,
if in connection with an exercise, Grantee elects, at its sole discretion,
to undertake to return to the Company any profit realized by Grantee with
respect to any Option Shares covered by such exercise, if any, when
realized (whether or not subject to Subchapter H at the time of
realization), then in all calculations of Total Option Profit and Notional
Total Option Profit the Total Option Profit and Notional Total Option
Profit related to such Option Shares shall be zero. Any undertaking
delivered pursuant to the preceding sentence shall also include an
undertaking by Grantee to dispose of the related Option Shares within nine
months after the earliest of (i) the date of exercise or (ii) the later of
(x) the first anniversary of the termination of the Merger Agreement and
(y) the first anniversary of the date on which the Exercise Event occurred,
or, if not legally permitted to do so within such period, at such time as
it is so legally permitted, and to treat as part of the profits realized
any dividends or other distributions received with respect to such Option
Shares.
10. Grantee Registration Rights.
(a) Grantee may by written notice (a "Grantee
Registration Notice") to Company request Company to register under the
Securities Act all or any part of the Option Shares or other securities
acquired by Grantee pursuant to this Agreement (collectively, the "Company
Registrable Securities") in order to permit the sale or other disposition
of such securities pursuant to a bona fide, firm commitment underwritten
public offering in which Grantee, and the underwriters shall effect as wide
a distribution of such Company Registrable Securities as is reasonably
practicable and shall use reasonable efforts to prevent any person or group
from purchasing through such offering shares representing more than 3% of
the shares of Company Common Stock then outstanding on a fully-diluted
basis.
(b) Company shall use reasonable best efforts to effect,
as promptly as practicable, but in no event later than 90 days following
receipt of the applicable Grantee Registration Notice, the registration
under the Securities Act of the Company Registrable Securities requested to
be registered in the Grantee Registration Notice; provided, however, that
(i) Grantee shall not be entitled to more than an aggregate of two
effective registration statements hereunder and (ii) Company will not be
required to file any such registration statement during any period of time
(not to exceed 40 days after receipt of a Grantee Registration Notice in
the case of clause (A) below, 90 days after receipt of a Grantee
Registration Notice in the case of clause (B) below and 60 days after
receipt of a Grantee Registration Notice in case of clause (C) below) when
(A) Company is in possession of material non-public information which it
reasonably believes would be detrimental to be disclosed at such time and,
based upon the advice of outside securities counsel to Company, believes
such information would have to be disclosed if a registration statement
were filed at that time; (B) Company would be required under the Securities
Act to include audited financial statements for any period in such
registration statement and such financial statements are not yet available
for inclusion in such registration statement; or (C) Company determines, in
its reasonable judgment, that such registration would interfere with any
financing, acquisition or other material transaction involving Company or
any of its subsidiaries. If the consummation of the sale of any Company
Registrable Securities pursuant to a registration hereunder does not
occur within 90 days after the filing with the SEC of the initial
registration statement therefor, the provisions of this Section shall again
be applicable to any proposed registration, it being understood that
Grantee shall not be entitled to more than an aggregate of two effective
registration statements hereunder. Company will use reasonable efforts to
cause each such registration statement to become effective, to obtain all
consents or waivers of other parties which are required therefor, and to
keep such registration statement effective for such period not in excess of
90 calendar days from the day such registration statement first becomes
effective as may be reasonably necessary to effect such sale or other
disposition. Company shall use reasonable best efforts to cause any Company
Registrable Securities registered pursuant to this Section to be qualified
for sale under the securities or blue sky laws of such jurisdictions as
Grantee may reasonably request and shall continue such registration or
qualification in effect in such jurisdictions; provided, however, that
Company shall not be required to qualify to do business in, or consent to
general service of process in, any jurisdiction.
(c) If Company effects a registration under the
Securities Act of Company Common Stock for its own account or for any other
shareholders of Company (other than on Form S-4 or Form S-8, or any
successor form), it will allow Grantee the right to participate in such
registration, and such participation will not affect the obligation of
Company to effect demand registration statements for Grantee under this
Section, except that, if the managing underwriters of such offering advise
Company in writing that in their opinion the number of shares of Company
Common Stock requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
offering, Company will include only the shares requested to be included
therein by Grantee which may be included therein without adversely
affecting the offering.
(d) The registration rights set forth in this Section are
subject to the condition that Grantee shall provide Company with such
information with respect to Company Registrable Securities, the plan for
distribution thereof, and such other information with respect to Grantee
as, in the reasonable judgment of counsel for Company, is necessary to
enable Company to include in a registration statement all material facts
required to be disclosed with respect to a registration hereunder.
(e) A registration effected under this Section shall be
effected at Company's expense, except for underwriting discounts and
commissions and the fees and expenses of Grantee's counsel, and Company
shall provide to the underwriters such documentation (including
certificates, opinions of counsel and "comfort" letters from auditors) as
are customary in connection with underwritten public offerings and as such
underwriters may reasonably require. In connection with any registration,
Grantee and Company agree to enter into an underwriting agreement
reasonably acceptable to each such party, in form and substance customary
for transactions of this type.
10A. Company Registration Rights. (a) In the event Grantee
shall elect to pay the Exercise Price in Tyco Common Shares as permitted
pursuant to Section 3(a), Company may by written notice (a "Company
Registration Notice") to Grantee request Grantee to take all action
necessary so that Tyco will register under the Securities Act all or any
part of the Tyco Common Shares so received by Company (collectively, the
"Tyco Registrable Securities") in order to permit the sale or other
disposition of such securities pursuant to a bona fide, firm commitment
underwritten public offering in which Company and the underwriters shall
effect as wide a distribution of such Tyco Registrable Securities as is
reasonably practicably and shall use reasonable efforts to prevent any
person or group from purchasing through such offering shares representing
more than 3% of the Tyco Common Shares then outstanding on a fully-diluted
basis.
(b) Grantee shall take all action necessary so that Tyco
will use reasonable best efforts to effect, as promptly as practicable (but
in no event later than 90 days following receipt of the applicable Company
Registration Notice), the registration under the Securities Act of the Tyco
Registrable Securities requested to be registered in the Company
Registration Notice; provided, however, that (i) Company shall not be
entitled to more than an aggregate of two effective registration statements
hereunder and (ii) Grantee will not be required to take all action
necessary so that Tyco will file any such registration statement during any
period of time (not to exceed 40 days after receipt of a Company
Registration Notice in the case of clause (A) below, 90 days after receipt
of a Company Registration Notice in the case of clause (B) below and 60
days after receipt of a Company Registration Notice in case of clause (C)
below) when (A) Tyco is in possession of material non-public information
which it reasonably believes would be detrimental to be disclosed at such
time and, based upon the advice of outside securities counsel to Tyco,
believes such information would have to be disclosed if a registration
statement were filed at the time; (B) Tyco would be required under the
Securities Act to include audited financial statements for any period in
such registration statement and such financial statements are not yet
available for inclusion in such registration statement; or (C) Tyco
determines, in its reasonable judgment, that such registration would
interfere with any financing, acquisition or other material transaction
involving Tyco or any of its subsidiaries. If the consummation of the sale
of any Tyco Registrable Securities pursuant to a registration hereunder
does not occur within 90 days after the filing with the SEC of the initial
registration statement therefor, the provisions of this Section shall again
be applicable to any proposed registration, it being understood that
Company shall not be entitled to more than an aggregate of two effective
registration statements hereunder. Grantee will take all action necessary
so that Tyco will use reasonable efforts to cause each such registration
statement to become effective, to obtain all consents or waivers of other
parties which are required therefor, and to keep such registration
statement effective for such period not in excess of 90 calendar days from
the day such registration statement first becomes effective as may be
reasonably necessary to effect such sale or other disposition. Grantee
shall take all action necessary so that Tyco will use reasonable best
efforts to cause any Tyco Registrable Securities registered pursuant to
this Section to be qualified for sale under the securities or blue sky laws
of such jurisdictions as Company may reasonably request and shall continue
such registration or qualification in effect in such jurisdiction;
provided, however, that neither Tyco nor Grantee shall be required to
qualify to do business in, or consent to general services of process in,
any jurisdiction.
(c) If Tyco effects a registration under the Securities
Act of Tyco Common Shares for its own account or for any other stockholders
of Tyco (other than on Form S-4 or Form S-8, or any successor form),
Grantee shall take all action necessary so that Tyco will allow Company the
right to participate in such registration, and such participation will not
affect the obligation of Grantee to take all action necessary so that Tyco
will effect demand registration statements for Company under this Section,
except that if the managing underwriters of such offering advise Grantee in
writing that in their opinion the number of shares of Tyco Common Shares
requested to be included in such registration exceeds the number which can
be sold in such offering without adversely affecting the offering, Grantee
will take all action necessary so that Tyco will include only the shares
requested to be included therein by Company which may be included therein
without adversely affecting the offering.
(d) The registration rights set forth in this Section are
subject to the condition that Company shall provide Tyco with such
information with respect to the Tyco Registrable Securities, the plan for
distribution thereof, and such other information with respect to Company
as, in the reasonable judgment of counsel for Tyco, is necessary to enable
Tyco to include in a registration statement all material facts required to
be disclosed with respect to a registration hereunder.
(e) A registration effected under this Section shall be
effected at Grantee's expense, except for underwriting discounts and
commissions and the fees and expenses of Company's counsel, and Grantee
shall provide to the underwriter such documentation (including
certificates, opinions of counsel and "comfort" letters from auditors) as
are customary in connection with underwritten public offerings and as such
underwriters may reasonably require. In connection with any registration,
Company agrees to, and Grantee agrees to take all action necessary so that
Tyco will, enter into an underwriting agreement reasonably acceptable to
each such party, in form and substance customary for transactions of this
type.
11. Transfers. The Option Shares may not be sold, assigned,
transferred, or otherwise disposed of except (i) to Tyco or any direct or
indirect subsidiary of Tyco, (ii) in an underwritten public offering as
provided in Section 10 or (iii) to any purchaser or transferee who would
not, to the knowledge of the Grantee after reasonable inquiry, immediately
following such sale, assignment, transfer or disposal beneficially own more
than 9.9% of the then-outstanding voting power of the Company, except that
Grantee shall be permitted to sell any Option Shares if such sale is made
pursuant to a tender or exchange offer that has been approved or
recommended by a majority of the members of the Board of Directors of
Company (which majority shall include a majority of directors who were
directors as of the date hereof or any other director approved by such
directors).
12. Listing. (a) If Company Common Stock or any other
securities to be acquired upon exercise of the Option are then listed on
the NYSE (or any other national securities exchange or national securities
quotation system), Company, upon the request of Grantee, will promptly file
an application to list the shares of Company Common Stock or other
securities to be acquired upon exercise of the Option on the NYSE (and any
such other national securities exchange or national securities quotation
system) and will use reasonable efforts to obtain approval of such listing
as promptly as practicable.
(b) If Tyco Common Shares received by Company pursuant to
Section 3(a) are then listed on the NYSE (or any other national securities
exchange or national securities quotation system), Grantee, upon the
request of Company, will promptly take all action necessary so that Tyco
will file an application to list the Tyco Common Shares on the
NYSE (and any such other national securities exchange or national
securities quotation system) and will take all action necessary so that
Tyco will use reasonable efforts to obtain approval of such listing as
promptly as practicable.
13. Miscellaneous. (a) Expenses. Except as otherwise provided
in the Merger Agreement, each of the parties hereto will pay all costs and
expenses incurred by it or on its behalf in connection with the
transactions contemplated hereunder, including fees and expenses of its own
financial consultants, investment bankers, accountants and counsel.
(b) Amendment. This Agreement may not be amended, except
by an instrument in writing signed on behalf of each of the parties.
(c) Extension; Waiver. Any agreement on the part of a party
to waive any provision of this Agreement, or to extend the time for
performance, will be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party to this Agreement to
assert any of its rights under this Agreement or otherwise will not constitute
a waiver of such rights.
(d) Entire Agreement; No Third-Party Beneficiaries. This
Agreement, the Merger Agreement (including the documents and instruments
attached thereto as exhibits or schedules or delivered in connection
therewith) and the Confidentiality Agreements (i) constitute the entire
agreement, and supersede all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter of
this Agreement, and (ii) except as provided in Section 8.10 of the Merger
Agreement, are not intended to confer upon any person other than the
parties any rights or remedies.
(e) Governing Law. This Agreement will be governed by,
and construed in accordance with, the laws of the State of New York,
regardless of the laws that might otherwise govern under applicable
principles of conflict of laws
thereof.
(f) Notices. All notices, requests, claims, demands, and
other communications under this Agreement must be in writing and will be
deemed given if delivered personally, telecopied (which is confirmed), or
sent by overnight courier (providing proof of delivery) to the parties at
the following addresses (or at such other address for a party as shall be
specified by like notice):
(i) If to Company to:
AMP Incorporated
X.X. Xxx 0000
000 Xxxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(ii) If to Grantee to:
Beta Zeno Corp.
Xxx Xxxx Xxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
Attention: President and Chief Executive Officer
Telecopy: (000) 000-0000
with a copy to:
Tyco International (US) Inc.
Xxx Xxxx Xxxx
Xxxxxx, Xxx xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
and
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
(g) Assignment. Neither this Agreement, the Option nor
any of the rights, interests, or obligations under this Agreement may be
assigned, transferred or delegated, in whole or in part, by operation of
law or otherwise, by Company or Grantee without the prior written consent
of the other, except that Grantee may assign its rights and interest under
this Agreement to Tyco or any direct or indirect subsidiary of Tyco. Any
assignment, transfer or delegation in violation of the preceding sentence
will be void. Subject to the first and second sentences of this Section
13(g), this Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
(h) Further Assurances. In the event of any exercise of
the Option by Grantee, Company and Grantee will execute and deliver all
other documents and instruments and take all other action that may be
reasonably necessary in order to consummate the transactions provided for
by such exercise.
(i) Enforcement; Consent to Jurisdiction The parties
agree that irreparable damage would occur and that the parties would not
have any adequate remedy at law in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms
or were otherwise breached. It is accordingly agreed that the parties will
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement. Each of the parties hereto (i) consents to submit itself to the
personal jurisdiction of any United States federal or state court located
in the City of New York, Borough of Manhattan in the event any dispute
arises out of this Agreement or any of the transactions contemplated by
this Agreement, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such
court, and (iii) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any
court other than a United States federal or state court located in the City
of New York, Borough of Manhattan.
IN WITNESS WHEREOF, Company and Grantee have caused this
Agreement to be signed by their respective officers thereunto duly
authorized as of the day and year first written above.
AMP INCORPORATED
By: /s/ Xxxxxx Xxxx
-------------------------
Name: Xxxxxx Xxxx
Title: Chairman and Chief
Executive Officer
BETA ZENO CORP.
By: /s/ Xxxx X. Xxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
GUARANTEE
Tyco International Ltd. ("Tyco") guarantees each and every
representation, warranty, covenant, agreement or other obligation of
Grantee, and/or any of its respective permitted assigns, and the full and
timely performance of their respective obligations under the provisions of
the foregoing Agreement. This is a guarantee of payment and performance,
and not of collection, and Tyco acknowledges and agrees that this guarantee
is unconditional, and no release or extinguishment of Grantee's obligations
or liabilities (other than in accordance with the terms of the Agreement),
whether by decree in any bankruptcy proceeding or otherwise, shall affect
the continuing validity and enforceability of this guarantee.
The provisions of Section 13 of the Agreement are incorporated
herein, mutatis mutandis, except that notices and other communications
hereunder to Tyco shall be delivered to Tyco International Ltd., The
Xxxxxxx Building, 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx XX 00 Xxxxxxx, Xxxx:
Secretary, Telecopy No. (000) 000-0000, Confirm No. (000) 000-0000 (with a
copy as provided therefor in Section 13(f)(ii)). We understand that Company
is relying on this guarantee in entering into the Agreement.
Tyco International Ltd.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice
President and
Chief Corporate Counsel
