EXHIBIT 99.4
DRAFT
EXCHANGE AGENT AGREEMENT
April __, 1997
IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Reorganization Department
NXS Acquisition Corp., a Delaware corporation ("Newco") and a
subsidiary of KKR 1996 Fund L.P. (the "Partnership"), and Amphenol Corporation,
a Delaware corporation (the "Company" or "Amphenol"), have entered into an
Agreement and Plan of Merger, dated as of January 23, 1997, as amended by an
amendment dated as of April 9, 1997 (as the same may be further amended, the
"Merger Agreement"), pursuant to which Newco will be merged with and into the
Company (the "Merger"), with the Company to be the surviving corporation. At
the Effective Time of the Merger, subject to certain provisions as described in
the Merger Agreement with respect to shares owned, directly or indirectly, by
the Company or any subsidiary of the Company, or by the Partnership, Newco or
any subsidiary of the Partnership, and with respect to fractional shares and
Dissenting Shares, (i) each share of Common Stock, par value $.001 per share, of
the Company (the "Company Common Stock") issued and outstanding (other than
Electing Shares, as defined below) will be converted into the right to receive
in cash from Amphenol following the Merger an amount equal to $26.00 (the "Cash
Election Price") and (ii) each issued and outstanding share of Company Common
Stock with respect to which an election has been made and not withdrawn in
accordance with the Merger Agreement (an "Electing Share") will be converted
into the right to retain one fully paid and nonassessable share of Company
Common Stock (a "Non-Cash Election Share"). Capitalized terms not otherwise
defined herein shall have the meanings given to such terms in the Merger
Agreement.
The Merger Agreement and the Proxy Statement/Prospectus dated
___________, 1997 (the "Proxy Statement") (which constitutes a part of a
Registration Statement on Form S-4 of the Company with respect to 4,400,000
shares of the Company Common Stock) and the related proxy cards and Non-Cash
Election Form have previously been delivered to you.
You have agreed to act as exchange agent (the "Exchange Agent") in
connection with the Merger in accordance with the terms of the Merger Agreement,
the Proxy Statement and this Exchange Agent Agreement (this "Agreement").
Without limiting the generality of the preceding sentence, your specific
responsibilities as Exchange Agent shall be as follows:
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1. PRORATION OF NON-CASH ELECTION SHARES. The Company hereby
notifies you that the Non-Cash Election Number referred to in Section 2.03
of the Merger Agreement is 4,400,000. If the number of Electing Shares
exceeds the Non-Cash Election Number, then (i) the number of Electing
Shares covered by each Non-Cash Election to be converted into the right to
retain Non-Cash Election Shares will be determined by multiplying the total
number of Electing Shares covered by such Non-Cash Election by a proration
factor (the "Non-Cash Proration Factor") determined by dividing the
Non-Cash Election Number by the total number of Electing Shares and (ii)
such number of Electing Shares will be so converted. All Electing Shares,
other than those shares converted into the right to retain Non-Cash
Election Shares as described in the immediately preceding sentence, will be
converted into cash (on a consistent basis among shareholders who made the
election to retain Non-Cash Election Shares, pro rata to the number of
shares as to which they made such election) as if such shares were not
Electing Shares.
If the number of Electing Shares is less than the Non-Cash Election
Number, then (i) all Electing Shares will be converted into the right to
retain Company Common Stock in accordance with the Merger Agreement, (ii)
additional shares of Amphenol Common Stock, other than Electing Shares,
will be converted into the right to retain Non-Cash Election Shares, which
number of additional shares shall be determined by multiplying the total
number of shares, other than Electing Shares and Dissenting Shares, by a
proration factor (the "Cash Proration Factor") determined by dividing (x)
the difference between the Non-Cash Election Number and the number of
Electing Shares by (y) the total number of shares of Amphenol Common Stock,
other than Electing Shares and Dissenting Shares, and (iii) such additional
shares of Amphenol Common Stock shall be converted into the right to retain
Non-Cash Election Shares in accordance with the Merger Agreement (on a
consistent basis among shareholders who held shares of Amphenol Common
Stock as to which they did not make the Non-Cash Election, pro rata to the
number of shares as to which they did not make such election).
2. MERGER CONSIDERATION. As soon as reasonably practicable as of or
after the Effective Time of the Merger:
(a) The Company shall deliver to the transfer agent and registrar for
the Company Common Stock (the "Company Transfer Agent"), duly executed
certificates for Company Common Stock to be countersigned and re-issued as
Non-Cash Election Shares.
(b) Upon or as soon as practicable after the Effective Time of the
Merger, the Company (either directly, or indirectly through its financing
sources) shall deposit or
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cause to be deposited in an Escrow Account, pursuant to an Escrow
Agreement, dated as of __________, 1997 (the "Escrow Agreement"), between
_______________ (the "Escrow Agent"), IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company and
the Company, immediately available funds (the "Escrow Fund") in an
aggregate amount equal to the product of (i) the Cash Election Price and
(ii) each issued and outstanding share of Company Common Stock (other than
Electing Shares) converted through election or proration into the right to
receive the Cash Election Price pursuant to Section 2.01(c) of the Merger
Agreement. Pursuant to the Escrow Agreement, the Escrow Fund shall be held
in a segregated account the principal of which is held for the benefit of
the holders of each issued and outstanding share of Company Common Stock
(other than Electing Shares) converted through election or proration into
the right to receive the Cash Election Price pursuant to Section 2.01(c) of
the Merger Agreement. Any interest and other income with respect to the
Escrow Fund shall be paid to the Company as and when requested by the
Company. Amounts other than such interest and other income shall be
withdrawn from the Escrow Fund by the Exchange Agent to make cash payments
pursuant to the Merger Agreement in respect of shares of Company Common
Stock in accordance with Section 6 below or any required tax withholdings.
The Exchange Agent shall not use the Escrow Fund for any other purpose
unless specifically so directed by the Company in writing. Pursuant to the
Escrow Agreement, the Escrow Fund shall terminate, and all funds therein
will be remitted to the Company, upon either (i) the earlier of (a)
delivery by the Exchange Agent of the entire principal amount of the Escrow
Fund pursuant to this Agreement and (b) October __, 1997 or (ii) such date
following October __, 1997 but no later than April __ 1998, as shall be
communicated in writing by the Company to the Escrow Agent (such date, the
"Escrow Termination Date").
(c) In the event the Escrow Agreement is terminated, from the Escrow
Termination Date until April __, 1998, the Exchange Agent shall make cash
payments from funds received for such purpose by the Exchange Agent
pursuant to the Merger Agreement (the "Post-Escrow Payments") to holders of
Company Common Stock in respect of shares of Company Common Stock in
accordance with Section 6 below or any required tax withholdings. Until
April __, 1998, the Company shall make weekly remittances to the Exchange
Agent in an amount sufficient, as communicated to the Company by the
Exchange Agent, to satisfy the Post-Escrow Payments.
3. NON-CASH ELECTION FORM. Attached hereto as Exhibit A-1 is a Non-
Cash Election Form (the "Form of Election") to be used by holders of shares of
Company Common Stock who elect to retain Non-Cash Election Shares.
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4. TRANSMITTAL LETTER. Attached hereto as Exhibit B-1 is a Letter of
Transmittal (the "Transmittal Letter") to be used by holders of shares of
Company Common Stock (other than holders who properly submit Forms of
Election with respect to such shares) to surrender such shares (and the
certificates evidencing such shares) in exchange for the Cash Election
Price. Promptly following the closing of the Merger, Company shall notify
you that the Effective Time of the Merger has occurred. As soon as
reasonably practicable thereafter, you shall address and mail and otherwise
make available the Transmittal Letter to each holder of shares of Company
Common Stock as of the Effective Time of the Merger (other than holders who
properly submit Forms of Election with respect to such shares).
5. EXAMINATION OF DOCUMENTS. (a) Upon receipt thereof, you agree to
examine Forms of Election, Transmittal Letters, certificates representing
shares of Company Common Stock ("Certificates") and other documents
delivered to you by or for holders of Company Common Stock in connection
with such Forms of Election and/or Transmittal Letters to ascertain whether
(i) such Forms of Election and/or the Transmittal Letters are duly executed
and properly completed in accordance with the instructions set forth
therein (including, in the case of Forms of Election, whether such Forms
have been received by you by 5:00 p.m., New York city time, on April __,
1997 (the "Election Deadline")), (ii) the Certificates are in proper form
for surrender and (iii) any other required documents submitted to you are
in proper form. In addition, you are to examine surrendered Certificates
to ascertain whether any stop transfer orders are in effect with respect
thereto.
(b) If a Form of Election or Transmittal Letter or other document has
been improperly executed or completed, or is otherwise not in proper form
or is subject to any other irregularity (including any irregularity
relating to a stop transfer order), you are to take such action as you deem
appropriate to notify the tendering stockholder of such irregularity and to
request that such irregularity be corrected; PROVIDED, that with respect to
any irregularity in or relating to a Form of Election of which you become
aware following the Election Deadline, you shall notify the stockholder who
submitted such Form of Election of such irregularity, shall advise such
stockholder in such notice to execute and complete a Transmittal Letter in
order to receive the Cash Election Price in the Merger and shall provide
such stockholder with a Transmittal Letter. If any such irregularity is
not corrected within a reasonable period of time after you notify the
tendering stockholder of such irregularity, you are to notify the Company
and await further written instructions from Company. The Company reserves
the right to waive any defect or irregularity in
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the form of delivery of Certificates and accompanying Forms of Election
and/or Transmittal Letters.
6. PAYMENT OF THE MERGER CONSIDERATION.
(a) As soon as practicable following the Effective Time of the Merger,
you shall, with respect to each Electing Share converted through election
or proration into the right to receive Non-Cash Election Shares pursuant to
Section 2.01(c) of the Merger Agreement, (i) arrange for the issuance by
the Company Transfer Agent and the delivery of stock certificates in the
name of the person or persons entitled thereto representing the number of
WHOLE shares of Company Common Stock issuable in respect of such shares
pursuant to the Merger Agreement (it being understood that no certificates
or scrip representing fractional shares of Company Common Stock shall be
issued upon the surrender for exchange of Certificates representing shares
of Company Common Stock), (ii) arrange for the sale of the shares of
Company Common Stock representing such fractional interests and (iii)
subject to the effect of any applicable laws, distribute the net proceeds
from such sale (following the deduction of applicable transaction costs) to
the holders of shares of Company Common Stock entitled thereto pursuant to
the Merger Agreement.
(b) As soon as practicable following the Effective Time of the Merger,
you shall, with respect to shares of Company Common Stock (other than
Electing Shares converted into the right to receive Non-Cash Election
Shares pursuant to Section 2.01(c) of the Merger Agreement), upon receipt
of the Certificate(s) covering such shares, together with a duly executed
and completed Transmittal Letter and any other required documents with
respect to such shares, make the cash payment in respect of each such
Electing Share required pursuant to the Merger Agreement on a basis
consistent with the requirements of the Merger Agreement and the Form of
Election related to such Electing Share. Each such cash payment shall be
made with funds withdrawn from the Escrow Fund.
(c) You will execute and deliver to the Company Transfer Agent, at
least twice weekly, a written notice and appropriate computer materials
indicating the certificates for Company Common Stock necessary for payment
of the Merger Consideration and setting forth the number of shares to be
represented by each such certificate and the name in which each certificate
should be issued.
(d) No interest shall be paid to holders of shares of Company Common
Stock on or with respect to any amount payable upon surrender of
Certificates in respect thereof. Insofar as required by any governmental
agency or authority, you shall provide all information and file all forms
or
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returns with regard to the payments made pursuant to this Agreement,
including, without limitation, information and forms and returns relating
to income taxes.
7. RECORDS OF COMPANY COMMON STOCK RECEIVED. Unless otherwise
required pursuant to this Agreement, all Forms of Election and Transmittal
Letters (and related documentation) shall be recorded by you as to date and
time of receipt and shall be preserved and retained by you, subject to
Section 13 hereof.
8. CANCELLATION OF SHARES; NOTATION. Upon delivering the Merger
Consideration in exchange for any Shares, you shall cancel or arrange for
the cancellation of all such Shares and related Certificates, and such
Certificates shall be retained by you pending further instructions from the
Company.
9. LOST CERTIFICATES. After the Effective Date of the Merger, if any
holder of Company Common Stock shall report to you that his failure to
surrender Certificates registered in his name is due to the loss,
misplacement or destruction of such Certificates, you shall require such
holder to furnish an appropriate affidavit of loss and a bond of indemnity
of a recognized surety company, which shall include indemnification of you,
the Company and all transfer agents and registrars of Company Common Stock
and Company Common Stock, all in such form as shall have been approved by
counsel for the Company. Upon receipt by you of the foregoing, you are
authorized to transmit the Merger Consideration to such holder without
surrender by him of Certificates. You will promptly comply with any
requests from or on behalf of the Company for current information
concerning the number of shares covered by Forms of Election.
10. REQUEST FOR INFORMATION. You will comply with telephone requests
for information with respect to Forms of Election, Transmittal Letters,
Certificates, the surrender of shares of Company Common Stock and payment
therefor; PROVIDED, that any telephone or written request for information
concerning dissenters' rights shall be referred to the Company. In
addition, you will transmit by telephone, and promptly thereafter confirm
in writing to, such persons as Company may designate, any information which
such persons reasonably request.
11. DISSENTING SHARES. Following the Effective Time of the Merger,
the Company shall notify you of the names of holders of shares of Company
Common Stock who have preserved, and the number of shares of Company Common
Stock with respect to which there have been preserved, statutory rights of
dissenting stockholders. If you receive certificates representing shares
of Company Common Stock
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owned by any such holders you are authorized to, and you shall, after
consultation with Company, endorse or stamp such certificates with a
statement that such shares are Dissenting Shares and the certificates shall
be returned to such holders. To the extent that shares of Company Common
Stock as to which dissenters' rights have been demanded are deemed to be
converted into the Merger Consideration pursuant to Section 2.01(d) of the
Merger Agreement, Company shall promptly notify you of the names of the
holders of such shares and number of shares deemed to be so converted, and
you shall, as soon as practicable upon receipt of Transmittal Letters and
certificates with respect to such shares, deliver to the holders thereof
the Merger Consideration in accordance with the Merger Agreement.
12. EXCHANGE AGENT FEES. For your services as Exchange Agent
hereunder, Company shall pay you the fees set forth in Exhibit C. Company
shall also reimburse you for your reasonable out-of-pocket expenses
incurred in connection with your services hereunder after submission to the
Company of an itemized statement in reasonable detail.
13. TERMINATION. Promptly following the date which is one year after
the Effective Time of the Merger, upon request of the Company, you shall
deliver to the Company all cash, Certificates, stock lists and stock
records of the Company and other instruments in your possession relating to
the transactions described herein, accompanied by an accounting for all
payments made by you pursuant to this Agreement, and your duties shall
thereupon terminate. If any Certificates are surrendered to you for
payment after such termination, you will promptly forward such
Certificates, together with the related Transmittal Letters and any other
documents, to the Company, or as the Company may otherwise direct.
14. INDEMNITY, ETC. (a) We agree to indemnify you for, and to hold
you harmless from any and all reasonable costs and expenses (including
reasonable fees and expenses of counsel) that may be paid or suffered by
you or to which you may become subject without gross negligence, willful
misconduct or bad faith on your part in the performance of your duties as
Exchange Agent, or as a result of defending yourself against any claim or
liability resulting from your actions as Exchange Agent pursuant hereto.
Anything in this agreement to the contrary notwithstanding, in no event
shall you be liable for special, indirect or consequential loss or damage
of any kind whatsoever (including but no limited to lost profits), even if
you have been advised of the likelihood of such loss or damage and
regardless of the form of action.
(b) In no case shall the Company be liable under this indemnity with
respect to any claim against you unless the
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Company shall be notified by you, by letter or by cable or telex confirmed
by letter, of the written assertion of a claim against you or of any action
commenced against you, promptly after you shall have received any such
written assertion of a claim or shall have been served with the summons or
other first legal process giving information as to the nature and basis of
the claim, but failure to so notify the Company shall not relieve the
Company from any liability which it may have otherwise than on account of
this Section 14, except to the extent that such failure prejudices the
Company's rights with respect to such claim. The Company shall be entitled
to participate at its own expense in the defense of any such claim, and if
the Company so elects at any time after receipt of such notice, it shall
assume the defense of any suit brought to enforce any such claim. In the
event of such assumption, the Company shall not be liable for any fees and
expenses of counsel thereafter incurred by you. In the event, however, that
it is determined and expressed in the written opinion of your counsel that
having common counsel or counsel selected by the Company would present such
counsel conflict of interest or there are alternative defenses
available to you which are incompatible with those of or unavailable to the
Company, then you may employ separate counsel to represent and defend you
with respect to such claim.
15. VERIFICATION. You shall have the right but no obligation to
submit each calculation made by you pursuant to Sections 1, 2, 3, 6 and 11
of this Agreement in writing to the Company for verification. The Company
shall verify in writing each such calculation so submitted to it to you.
You shall have full authorization and protection for any action taken in
reliance on a calculation which has been so verified.
16. CERTAIN RIGHTS. You shall: (a) have no duties or obligations
other than those specifically set forth herein; (b) not be required to and
shall make no representations and have no responsibilities as to the
validity, accuracy, value or genuineness of (i) the Merger, (ii) any
certificates or documents prepared by the Company in connection with the
Merger or (iii) any signatures or endorsements, other than your own; (c)
not be obligated to take any legal action hereunder that might, in your
reasonable judgment, involve any expense or liability, unless you have been
furnished with reasonable indemnity by the Company; (d) be able to rely on
and shall be protected in acting on the written or oral instructions with
respect to your actions as Exchange Agent specifically covered by this
Agreement, of any officer of the Company; (e) be able to rely on and shall
be protected in acting upon any certificate, instrument, opinion, notice,
letter, telegram or any other document or security delivered to you and
believed by you reasonably and in good faith to be genuine and to have been
signed by the proper party or parties; (f) not be responsible for or liable
in any respect on account of the identity, authority or rights of any
person executing or delivering or purporting to execute or deliver any
document or property under this Agreement and shall have no responsibility
with respect to the use or application of any property delivered by you
pursuant to the provisions hereof; (g) be able to
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consult with counsel satisfactory to you (including counsel for the
Company) and the advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by you hereunder in good faith and in accordance with
advice or opinion of such counsel; (h) not be called on at any time to
advise, and shall not advise, any person as to the value of the
consideration to be received; (i) not be liable for anything which you may
do or refrain from doing in connection with this Agreement except for your
own gross negligence, willful misconduct or bad faith; (j) not be bound by
any notice or demand, or any waiver or modification of this Agreement or
any of the terms hereof, unless evidenced by a writing delivered to you
signed by the proper authority or authorities and, if your duties or rights
are affected, unless you shall give your prior written consent thereto; (k)
have no duty to enforce any obligation of any person to make delivery, or
to direct or cause any delivery to be made, or to enforce any obligation of
any person to perform any other act; (l) have the right to assume, in
absence of written notice to the contrary from the proper person or
persons, that a fact or an event by reason of which an action would or
might be taken by you does not exist or has not occurred without incurring
liability for any action taken or omitted, or any action suffered by you to
be taken or omitted, in good faith or in the exercise of your best
judgment, in reliance upon such assumption.
17. DEPOSITORY TRUST COMPANY. You shall make arrangements with
respect to delivery of shares of Company Common Stock and Certificates by
The Depository Trust Company in connection with the Merger in accordance
with your customary procedures for such transfer not inconsistent with the
terms of this Agreement or custom and practice in the industry generally.
18. FURTHER INFORMATION. Should you have any questions which are not
covered by these instructions, you will consult with representatives of
Newco and act in accordance with their instructions.
19. NOTICES. All notices and other communications hereunder shall be
delivered to the respective parties at the following addresses:
If to the Company: Amphenol Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
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If to the Exchange
Agent: IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Reorganization
Department
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20. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the law of the State of New York, without
regard to the conflicts of law rules thereof.
Please confirm your agreement to act as Exchange Agent by signing in
the space indicated below.
Very truly yours,
AMPHENOL CORPORATION
By:
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Title:
The undersigned hereby accepts its appointment as Exchange Agent on
the terms set forth above as of the date first above written.
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
By:
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Title: