Exhibit 4.6
SALE PARTICIPATION AGREEMENT
May 19, 1997
_____________________
Amphenol Corporation
000 Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Dear ___________________:
You have entered into a Management Stockholder's Agreement, dated as
of May 19, 1997 between Amphenol Corporation, a Delaware corporation ("the
Company"), and you (the "Stockholder's Agreement") relating to your ownership
and/or purchase of shares of the Class A Common Stock, par value $.001 per share
(the "Common Stock") of the Company. The undersigned, KKR Partners II, L.P., a
Delaware limited partnership ("KKR Partners"), NXS Associates, L.P., a Delaware
limited partnership ("Associates"), KKR 1996 Fund L.P., a Delaware limited
partnership ("KKR 1996"), and NXS I, L.L.C., a Delaware limited liability
company ("NXS LLC"), also have acquired shares of Common Stock of the Company
and hereby agree with you as follows, effective upon the Effective Time of the
Merger (as defined in the Stockholder's Agreement) or, in the event that you
entered into such Stockholder's Agreement subsequent to the Effective Time of
the Merger, upon the purchase of Common Stock by you:
1. In the event that at any time KKR Partners, Associates, KKR 1996 or
NXS LLC, as the case may be (each, a "Selling Party" and collectively, the
"Selling Parties"), proposes to sell for cash or any other consideration any
shares of Common Stock of the Company owned by it, in any transaction other than
a Qualified Public Offering (as defined in the Stockholder's Agreement) or a
sale to an affiliate of KKR Partners, Associates, KKR 1996 or NXS LLC, as the
case may be, the Selling Party will notify you or your Management Stockholder's
Estate or Management Stockholder's Trust (as such terms are defined in Section 2
of the Stockholder's Agreement), as the case may be, in writing (a "Notice") of
such proposed sale (a "Proposed Sale") and the material terms of the Proposed
Sale as of the date of the Notice (the "Material Terms") promptly, and in any
event not less than 15 days prior to the consummation of the Proposed Sale and
not more than 5 days after the execution of the definitive agreement relating to
the Proposed Sale, if any (the "Sale Agreement"). If within 10 days of your or
your Management Stockholder's Estate's or Management Stockholder's Trust's, as
the case may be, receipt of such Notice the Selling Party receives
from you or your Management Stockholder's Estate or Management Stockholder's
Trust, as the case may be, a written request (a "Request") to include Common
Stock held pursuant to the Stockholder's Agreement by you or your Management
Stockholder's Estate or Management Stockholder's Trust, as the case may be, in
the Proposed Sale (which Request shall be irrevocable unless (a) there shall be
a material adverse change in the Material Terms or (b) if otherwise mutually
agreed to in writing by you or your Management Stockholder's Estate or
Management Stockholder's Trust, as the case may be, and the Selling Party), the
Common Stock so held by you will be so included as provided herein; provided
that only one Request, which shall be executed by you or your Management
Stockholder's Estate or
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Management Stockholder's Trust, as the case may be, may be delivered with
respect to any Proposed Sale for all Common Stock held by you or your
Management Stockholder's Estate or Management Stockholder's Trust. Any
Common Stock held by you or by your Management Stockholder's Estate or
Management Stockholder's Trust which is not subject to the terms and
conditions of the Stockholder's Agreement shall not be included in any
Proposed Sale, and references to Common Stock herein shall be construed
accordingly. Promptly after the consummation of the transactions
contemplated thereby, the Selling Party will furnish you, your Management
Stockholder's Trust or your Management Stockholder's Estate with a copy of
the Sale Agreement, if any. In the event that KKR Partners and any or all of
Associates, KKR 1996 and/or NXS LLC propose to sell shares of Common Stock in
the Proposed Sale, the term "Selling Partnership" shall refer only to
Associates, KKR 1996 and/or NXS LLC, as the case may be, and not to KKR
Partners.
2. The number of shares of Common Stock which you or your Management
Stockholder's Estate or Management Stockholder's Trust, as the case may be, will
be permitted to include in a Proposed Sale pursuant to a Request will be the
lesser of (a) the sum of the number of shares of Common Stock then owned by you
or your Management Stockholder's Estate or Management Stockholder's Trust (and
held pursuant to the Stockholder's Agreement), as the case may be, plus all
shares of Common Stock which you are then entitled to acquire under an
unexercised Option (as defined in the Stockholder's Agreement) to purchase
shares of Common Stock, to the extent such Option is then vested or would become
vested as a result of the consummation of the Proposed Sale and (b) the sum of
the shares of Common Stock then owned by you or your Management Stockholder's
Estate or Management Stockholder's Trust, as the case may be, plus all shares of
Common Stock which you are entitled to acquire under an unexercised Option to
purchase shares of Common Stock, whether or not fully vested, multiplied by a
percentage calculated by dividing the aggregate number of shares proposed to be
sold in the Proposed Sale by the total number of shares of Common Stock (x)
owned by all parties who have rights pursuant to this Agreement and any other
Sale Participation Agreement with respect to the Common Stock of the Company and
(y) KKR Partners, Associates, KKR 1996 and NXS LLC. If one or more holders of
shares of Common Stock who have been granted the same rights granted to you or
your Management Stockholder's Estate or Management Stockholder's Trust, as the
case may be, hereunder elect not to include the maximum number of shares of
Common Stock which such holders would have been permitted to include in a
Proposed Sale (the "Eligible Shares"), KKR Partners, Associates or NXS LLC, KKR
1996 or NXS LLC, or such remaining holders of shares of Common Stock, or any of
them, may sell in the Proposed Sale a number of additional shares of Common
Stock owned by any of them equal to their pro rata portion of the number of
Eligible Shares not included in the Proposed Sale, based on the relative number
of shares of Common Stock then held by each such holder, and such additional
shares of Common Stock which any such holder or holders propose to sell shall
not be included in any
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calculation made pursuant to the first sentence of this Paragraph 2 for the
purpose of determining the number of shares of Common Stock which you or your
Management Stockholder's Estate or Management Stockholder's Trust, as the
case may be, will be permitted to include in a Proposed Sale. KKR Partners,
Associates, KKR 1996 and NXS LLC, or any of them, may sell in the Proposed
Sale additional shares of Common Stock owned by any of them equal to any
remaining Eligible Shares which will not be included in the Proposed Sale
pursuant to the foregoing.
3. Except as may otherwise be provided herein, shares of Common Stock
subject to a Request will be included in a Proposed Sale pursuant hereto and in
any agreements with purchasers relating thereto on the same terms and subject to
the same conditions applicable to the shares of Common Stock which the Selling
Party proposes to sell in the Proposed Sale. Such terms and conditions shall
include, without limitation: the sales price; the payment of fees, commissions
and expenses; the provision of, and representation and warranty as to,
information requested by the Selling Party; and the provision of requisite
indemnifications; provided that any indemnification provided by you, your
Management Stockholder's Estate or your Management Stockholder's Trust shall be
pro rata in proportion with the number of shares of Common Stock to be sold.
4. Upon delivering a Request, you or your Management Stockholder's
Estate or Management Stockholder's Trust, as the case may be, will, if requested
by the Selling Party, execute and deliver a custody agreement and power of
attorney in form and substance satisfactory to the Selling Party with respect to
the shares of Common Stock which are to be sold by you or your Management
Stockholder's Estate or Management Stockholder's Trust, as the case may be,
pursuant hereto (a "Custody Agreement and Power of Attorney"). The Custody
Agreement and Power of Attorney will provide, among other things, that you or
your Management Stockholder's Estate or Management Stockholder's Trust, as the
case may be, will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing such
shares of Common Stock (duly endorsed in blank by the registered owner or owners
thereof) and irrevocably appoint said custodian and attorney-in-fact as your or
your Management Stockholder's Estate's or Management Stockholder's Trust's, as
the case may be, agent and attorney-in-fact with full power and authority to act
under the Custody Agreement and Power of Attorney on your or your Management
Stockholder's Estate's or Management Stockholder's Trust's, as the case may be,
behalf with respect to the matters specified therein.
5. Your or your Management Stockholder's Estate's or Management
Stockholder's Trust's, as the case may be, right pursuant hereto to participate
in a Proposed Sale shall be contingent on your or your Management Stockholder's
Estate's or Management Stockholder's Trust's, as the case may be, strict
compliance with each of the provisions hereof and your or your Management
Stockholder's Estate's or Management Stockholder's Trust's, as the case may be,
willingness to execute such documents in connection therewith as may be
reasonably requested by the Selling Party.
6. In the event of a Proposed Sale pursuant to Section 1 hereof, the
Selling Party may elect, by so specifying in the Notice, to require you or your
Management
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Stockholder's Estate or Management Stockholder's Trust, as the case may be,
to, and you or your Management Stockholder's Estate or Management
Stockholder's Trust, as the case may be, will, participate in such Proposed
Sale in accordance with the terms and provisions of Section 2, 3 and 4 hereof.
7. The obligations of KKR Partners, Associates, KKR 1996 and NXS LLC
hereunder shall extend only to you or your Management Stockholder's Estate or
Management Stockholder's Trust, as the case may be, and no other of your or your
Management Stockholder's Estate's or Management Stockholder's Trust's, as the
case may be, successors or assigns shall have any rights pursuant hereto.
8. This Agreement shall terminate and be of no further force and
effect on the fifth anniversary of the first occurrence of a Public Offering (as
defined in the Stockholder's Agreement).
9. All notices and other communications provided for herein shall be
in writing and shall be deemed to have been duly given when delivered to the
party to whom it is directed:
(a) If to KKR Partners, Associates, KKR 1996 or NXS LLC, to it at the
following address:
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
(b) If to you, to you at the address first set forth above herein;
(c) If to your Management Stockholder's Estate or Management
Stockholder's Trust, at the address provided to such parties by
such entity;
or at such other address as any of the above shall have specified by notice in
writing delivered to the others by certified mail, overnight delivery or
telecopy.
10. The laws of the State of Delaware (or if the Company
reincorporates in another state, of that state) shall govern the interpretation,
validity and performance of the
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terms of this Agreement. No suit, action or proceeding with respect to this
Agreement may be brought in any court or before any similar authority other
than in a court of competent jurisdiction in the States of Delaware (or if
the Company reincorporates in another state, of that state) or New York, as
the Selling Parties may elect in their sole discretion, and you hereby submit
to the non-exclusive jurisdiction of such courts for the purpose of such
suit, proceeding or judgment. You hereby irrevocably waive any right which
you may have had to bring such an action in any other court, domestic or
foreign, or before any similar domestic or foreign authority. You hereby
irrevocably and unconditionally waive trial by jury in any legal action or
proceeding in relation to this Agreement and for any counterclaim therein.
11. If KKR Partners, Associates, KKR 1996 or NXS LLC transfers its
interest in the Company to an affiliate of KKR Partners, Associates, KKR 1996 or
NXS LLC, as the case may be, such affiliate shall assume the obligations
hereunder of KKR Partners, Associates, KKR 1996 or NXS LLC, as the case may be.
12. Notwithstanding any other provision of this Agreement, neither
the general partner nor the limited partners, nor any future general or limited
partner of any of KKR Partners, Associates or KKR 1996, nor any member or
managing member of NXS LLC, shall have any personal liability for performance of
any obligation of such entity under this Agreement.
It is the understanding of the undersigned that you are aware that no
Proposed Sale presently is contemplated and that such a sale may never occur.
If the foregoing accurately sets forth our agreement, please
acknowledge your acceptance thereof in the space provided below for that
purpose.
Very truly yours,
KKR PARTNERS II, L.P.
By: KKR Associates (Strata) L.P.,
its General Partner
By: Strata L.L.C.,
its General Partner
By: ------------------------------
Name:
Title:
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NXS ASSOCIATES, L.P.
By: KKR Associates (NXS) L.P., its
General Partner
By: KKR-NXS L.L.C., its
General Partner
By: -------------------------------
Member
KKR 1996 FUND L.P.
By: KKR Associates 1996 L.P., its
General Partner,
By: KKR 1996 GP LLC, its
General Partner
By: ------------------------------
Member
NXS I, L.L.C.
By: KKR 1996 Fund, L.P.,
its Member
By: KKR Associates 1996 L.P.,
its General Partner,
By: KKR 1996 GP L.L.C,
its General Partner
By: ------------------------------
Member
Accepted and agreed to:
By: __________________________
__________________________
