Exhibit 1
$240,000,000
AMPHENOL CORPORATION
___% SENIOR SUBORDINATED NOTES DUE 2007
FORM OF UNDERWRITING AGREEMENT
May __, 1997
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
2121 Avenue of the Stars
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Amphenol Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell $240,000,000 in principal amount of its ___% Senior
Subordinated Notes due 2007 (the "Securities") to ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation ("DLJ"), ▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇"), BT Securities
Corporation ("BT") and Chase Securities Inc. ("CSI" and, together with DLJ,
▇▇▇▇▇▇ and BT, the "Underwriters"). The Securities are to be issued pursuant to
the provisions of an Indenture to be dated as of May __, 1997, (the "Indenture")
between the Company and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as Trustee (the
"Trustee").
It is understood by the parties hereto that (i) the Company has
entered into the Agreement and Plan of Merger, dated as of January 23, 1997 (as
amended as of April 9, 1997, the "Merger Agreement"), between the Company and
NXS Acquisition Corp., (ii) on the Closing Date (as defined), the Company will
purchase for cash, upon the terms of and subject to the Offer to Purchase and
Consent Solicitation Statement, dated April 15, 1997 (as supplemented from time
to time, the "Statement"), and in the accompanying Consent and Letter
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of Transmittal ( the "Letter of Transmittal" and, together with the Statement,
the "Offer to Purchase") all of its outstanding 12 3/4% Senior Subordinated
Notes due 2002 (the "12 3/4% Notes") tendered by the holders thereof pursuant to
the Offer to Purchase, (iii) the Company has entered into the Dealer Manager and
Solicitation Agent Agreement, dated April 15, 1997, among the Company, DLJ and
▇▇▇▇▇▇ relating to the Offer to Purchase (the "Dealer Manager Agreement"), (iv)
on or prior to the Closing Date, the Company will enter into a Supplemental
Indenture with respect to the 12 3/4% Notes, (v) the Company has entered into a
[Consent and Waiver Agreement] with holders of [a majority of] its outstanding
10.45% Senior Notes due 2001 (the "Senior Note Consent") and (vi) on or prior to
the Closing Date the Company and the other parties thereto will enter into the
Credit Facilities (as defined in the Prospectus (as defined)). [This Agreement,
the Merger Agreement, the Senior Note Consent, the Credit Facilities and the
Supplemental Indenture], in each case including all the transactions
contemplated hereby and thereby, are referred to as the "Transaction Documents."
1. Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively called the
"Act"), a registration statement on Form S-3 (No. 333-22521), including a
prospectus relating to the Securities, which may be amended. The registration
statement as amended at the time when it becomes effective, including all
financial schedules and exhibits thereto and documents incorporated therein by
reference and including a registration statement (if any) filed pursuant to Rule
462(b) under the Act increasing the size of the offering registered under the
Act and information (if any) deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430A or Rule 434 under the Act, is
hereinafter referred to as the "Registration Statement"; and the prospectus
(including any prospectus subject to completion taken together with any term
sheet meeting the requirements of Rule 434(b) or Rule 434(a) under the Act) in
the form first used to confirm sales of Securities is hereinafter referred to as
the "Prospectus," except that if any revised prospectus shall be provided to you
by the Company for use in connection with the offering of the Securities as
contemplated by Section 5 hereof which differs from the form of prospectus first
used to confirm sales of Securities, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to you for such
use. Any reference herein to any preliminary prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such
preliminary prospectus or prospectus, as the case may be, and any reference to
any amendment or supplement to any preliminary prospectus or Prospectus shall be
deemed to refer to and include any documents filed after the date of such
preliminary prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively called the "Exchange Act"), and incorporated
by reference in such preliminary prospectus or Prospectus, as the case may be;
and any reference to any amendment to the Registration Statement shall be deemed
to refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement.
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2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, (i) the Company agrees to issue and sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, the principal amount of Securities set forth opposite the name
of such Underwriter in Annex I hereto, at a purchase price of ___% of the
principal amount thereof (the "Purchase Price"), plus accrued interest thereon,
if any, from May __, 1997 to the date of payment and delivery.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose (i) to make a public offering of their respective portions
of the Securities as soon after the effective date of the Registration Statement
as in your judgment is advisable and (ii) initially to offer the Securities upon
the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and payment
for the Securities shall be made at 10:00 A.M., New York City time, on May __,
1997, (unless postponed in accordance with the provisions of Section 9)
following the date of the public offering (the "Closing Date") at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at
such place as you and the Company may agree in writing. The Closing Date and the
location of delivery of and the form of payment for the Securities may be varied
by agreement between you and the Company.
Certificates for the Securities shall be registered in such names
and issued in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date. Such certificates shall be
made available to you for inspection not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Date. Certificates in
definitive form evidencing the Securities shall be delivered to you on the
Closing Date, with any transfer taxes thereon duly paid by the Company, for the
respective accounts of the several Underwriters, against payment of the Purchase
Price therefor by wire transfer payable in same day funds to the order of the
Company or as the Company may direct.
5. Agreements of the Company. The Company agrees with you:
(a) If necessary, to (i) file (A) an amendment to the Registration
Statement, (B) a post-effective amendment to the Registration Statement
pursuant to Rule 430A under the Act or (C) a new or additional
registration statement pursuant to Rule 462(b) or (c) under the Act, in
each case, as soon as practicable after the execution and delivery of this
Agreement; (ii) provide evidence satisfactory to the Underwriters of such
timely filing; and (iii) use its best efforts to cause the Registration
Statement or such post-effective amendment to become effective at the
earliest possible time.
(b) To comply fully and in a timely manner with the applicable
provisions of Rule 424, Rule 430A and Rule 462 under the Act.
(c) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) when the Registration Statement has become
effective and when any post-
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effective amendment to it becomes effective, (ii) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of the suspension or qualification of the
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purposes, and (iv) of the happening of any event
during the period referred to in paragraph (f) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading, or of the necessity to amend or
supplement the Registration Statement or Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal or lifting of such order at the earliest possible
time.
(d) To furnish to you, without charge, a signed copy of the
Registration Statement as first filed with the Commission and each
amendment to it, including all exhibits and documents incorporated therein
by reference, and to furnish to you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
(e) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, to
make any amendment or supplement to the Prospectus or to make any filing
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act of which you shall not previously have been advised or to
which you shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to the
Registration Statement, supplement to the Prospectus or any filing with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act which may be necessary or advisable in connection with the
distribution of the Securities by you, and to use its best efforts to
cause the same to become promptly effective.
(f) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as a prospectus is required
by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish to each Underwriter as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus) as such Underwriter
may reasonably request.
(g) If, during the period specified in paragraph (f), any event
shall occur as a result of which it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with the Act or the Exchange Act, forthwith to
(i)(A) prepare and file, subject to the provisions of paragraph (e) above,
with the Commission an
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appropriate amendment or supplement to the Prospectus or (B) file under
the Exchange Act a document to be incorporated by reference in the
Prospectus, so that in either case, the statements in the Prospectus, as
so amended or supplemented, will not in the light of the circumstances
when it is so delivered, be misleading, or so that the Prospectus will
comply with the Act and the Exchange Act, and (ii) to furnish to each of
you, such number of copies of such documents as such Underwriter may
reasonably request.
(h) Prior to any public offering of the Securities, (i) to cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Securities for offer and sale by the
several Underwriters and by dealers under the state securities or Blue Sky
laws of such jurisdictions of the United States as you may request, (ii)
to continue such qualification in effect so long as required for
distribution of the Securities and (iii) to file such consents to service
of process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, that the Company shall
not be required to register or qualify as a foreign corporation where it
is not now so qualified or to take any action that would subject it to the
service of process in suits or taxation, other than as to matters and
transactions relating to the offer and sale of the Securities, in any
jurisdiction where it is not now so subject.
(i) To mail and make generally available to its security holders as
soon as reasonably practicable an earning statement covering a period of
at least twelve months after the effective date (as defined in Rule 158 of
the Act) of the Registration Statement (but in no event commencing later
than 90 days after such date) which shall satisfy the provisions of
Section 11(a) of the Act.
(j) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated, to
pay all costs, expenses, fees and taxes incident to (i) the preparation,
printing, filing and distribution to the Underwriters of the Registration
Statement (including financial statements and exhibits), each preliminary
prospectus and all amendments and supplements to any of them prior to or
during the period specified in paragraph (f), (ii) the printing and
delivery to the Underwriters of the Prospectus and all amendments or
supplements to it during the period specified in paragraph (f), (iii) the
printing and delivery of this Agreement and the preliminary and final Blue
Sky Memoranda (including in each case any disbursements of counsel for the
Underwriters relating to such printing and delivery), (iv) the
registration with the Commission of the Securities, (v) the registration
or qualification of the Securities for offer and sale under the securities
or Blue Sky laws of the several states and any foreign jurisdiction
(including in each case fees and disbursements of counsel for the
Underwriters relating to such registration or qualification and memoranda
relating thereto), (vi) filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. ("NASD") in
connection with the offering of the Securities, (vii) furnishing such
copies of the Registration Statement, the preliminary prospectus, the
Prospectus and all amendments and supplements thereto as may be requested
for use in connection with the offering or sale of the Securities by the
Underwriters, (viii) fees, disbursements and expenses of the
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Company's counsel and accountants, and (ix) all other reasonable costs and
expenses incident to the performance by the Company of its other
obligations under this Agreement.
6. Representations and Warranties. The Company represents and
warrants to each Underwriter that:
(a) The Company either (i) has filed with the Commission prior to
the effectiveness of the Registration Statement, a further amendment
thereto, including therein a final prospectus, or (ii) will file with the
Commission after the effectiveness of such Registration Statement, a final
prospectus in accordance with Rules 430A and 424(b) under the Act and
(iii) may file with the Commission after the effectiveness of such
Registration Statement, a post-effective amendment thereto or a new or
additional registration statement in accordance with Rule 462 under the
Act; any required filing of the Prospectus, or any supplement thereto,
pursuant to Rule 424(b) under the Act has been or will be made in the
manner and within the time period required thereunder; any required filing
of a post-effective amendment under Rule 430A of the Act or any new or
additional registration statement pursuant to Rule 462 under the Act has
been or will be made in the manner and within the time period required
thereunder; no stop order suspending or preventing the use of the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, has been issued and no proceedings for such purpose are, to the
knowledge of the Company, pending before or threatened by the Commission.
(b) (i) The documents incorporated by reference in the Registration
Statement, when they became effective or were filed with the Commission,
as the case may be, did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) the
documents incorporated by reference in the Registration Statement, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Exchange
Act; (iii) any further documents so filed and incorporated by reference in
the Registration Statement or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Exchange Act; and (iv) any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
that the representations and warranties set forth in this paragraph (b) do
not apply to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter furnished
through you expressly for use therein, or to the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively called
the "Trust Indenture Act"), of the Trustee filed as an exhibit to the
Registration Statement.
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(c) (i) The Registration Statement, in the form in which it became
or becomes effective, did not or will not contain and the Registration
Statement, as amended or supplemented, if applicable, will not contain, an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Act and (iii) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph (c) do not
apply to statements or omissions in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein or to the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee filed
as an exhibit to the Registration Statement.
(d) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Act, and each Registration Statement
filed pursuant to Rule 462(b) under the Act, if any, complied when so
filed in all material respects with the Act; and did not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph (d) do not
apply to statements or omissions any preliminary prospectus, or any
amendment or supplement thereto, based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein or to the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee filed as an
exhibit to the Registration Statement.
(e) Each of the Company and its Subsidiaries (as defined) organized
under the laws of the United States, any state thereof or the District of
Columbia (the "Domestic Subsidiaries") has been duly incorporated, is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to
carry on its business as it is currently being conducted and to own, lease
and operate its properties. The Company is duly qualified and is in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where to failure
to be so qualified would not have a material adverse effect on the
business, condition (financial or otherwise), results of operations or
properties of the Company and its Subsidiaries, taken as a whole (each, a
"Material Adverse Effect").
(f) Each Subsidiary of the Company that is not a Domestic Subsidiary
and would constitute a "significant subsidiary" (as defined in Section
1-02 of Regulation S-X of the Commission) has been duly incorporated (or
the equivalent thereof), is validly
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existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and required
authority to carry on its business as it is currently being conducted and
to own, lease and operate its properties. The term "Subsidiary" means each
person with at least nominal assets of which a majority of the voting
equity securities or other interests is owned, directly or indirectly, by
the Company as of the Closing Date, such persons being referred to
collectively as the "Subsidiaries."
(g) Each of the Domestic Subsidiaries is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect.
(h) Each Subsidiary of the Company that is not a Domestic Subsidiary
and would constitute a "significant subsidiary" (as defined in Section
1-02 of Regulation S-X of the Commission) is duly qualified and is in good
standing (or the equivalent thereof) as a foreign corporation authorized
to do business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a Material Adverse
Effect.
(i) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable and
are owned by the Company or a Subsidiary of the Company, free and clear of
any security interest, claim, lien, encumbrance or adverse interest of any
nature, except for nominal shares held pursuant to the requirements of
local law, and except as described in the Prospectus; there are no
outstanding rights, warrants or options to acquire, or securities
convertible into or exchangeable for, any shares of capital stock or other
equity interest in any of the Company's Subsidiaries.
(j) The Company has the authorized, issued and outstanding
capitalization set forth in the Prospectus under the heading
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus).
(k) All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(l) The Securities have been duly authorized by the Company and,
when the Securities are executed by the Company and authenticated by the
Trustee in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of this
Agreement, the Securities will be entitled to the benefits of the
Indenture and will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to the effects
of (i)
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bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought.
(m) The Securities, the Indenture and each of the Merger Agreement
and the Credit Facilities conform in all material respects as to legal
matters to the description thereof contained in the Prospectus.
(n) The Indenture has been or will, at the Closing Date, be duly
qualified under the Trust Indenture Act and has been duly and validly
authorized by the Company and, when the Securities are delivered and paid
for pursuant to this Agreement on the Closing Date, the Indenture will
have been duly executed and delivered by the Company and will constitute a
valid and legally binding agreement of the Company, enforceable in
accordance with its terms except as (i) as such enforcement may be limited
by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws now or hereafter in effect relating to or
affecting creditors' rights generally; (ii) that the remedies of specific
performance and injunctive and other forms of relief are subject to
general equitable principles, whether enforcement is sought at law or in
equity, and that such enforcement may be subject to the discretion of the
court before which any proceedings therefor may be brought; and (iii) as
rights to indemnity and contribution may be limited by state or federal
laws relating to securities or by the policies underlying such laws.
(o) This Agreement has been duly authorized, executed and delivered
by the Company.
(p) Neither the Company nor any of its Subsidiaries is (i) in
violation of its respective charter or by-laws, (ii) in default in any
material respect in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or instrument material
to the conduct of the business of the Company and its Subsidiaries, taken
as a whole, to which the Company or any of its Subsidiaries is a party or
by which it or any of its Subsidiaries or their respective property is
bound or (iii) except for violations that, individually or in the
aggregate, would not have a Material Adverse Effect or a material adverse
effect on the ability of the Company and the Underwriters to consummate
the Offering (as defined in the Prospectus), in violation of any law,
statute, rule, regulation, judgment or court decree applicable to the
Company or any of its Subsidiaries.
(q) The execution, delivery and performance of the Transaction
Documents by the Company, compliance by the Company with all the
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not conflict with, constitute a
default under or violate (i) any of the terms, conditions or provisions of
the certificate of incorporation or by-laws of the Company or any of its
Subsidiaries, (ii) any of the terms, conditions or provisions of any
document, agreement,
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indenture or other instrument to which the Company or any of its
Subsidiaries is a party or by which the Company, any of its Subsidiaries
or their respective properties are bound or (iii) any judgment, writ,
injunction, decree, order or ruling of any court or governmental authority
binding on the Company, any of its Subsidiaries or their respective
properties except, in the case of (ii) and (iii), for such conflicts,
defaults or violations that would not have a Material Adverse Effect. No
consent, approval, waiver, license or authorization or other action by or
filing with any governmental authority is required in connection with the
execution, delivery and performance by the Company of the Transaction
Documents or the consummation by the Company of the transactions
contemplated hereby and thereby, except under the Act and the state or
foreign securities or blue sky laws or except as shall have been obtained
or made on or prior to the Closing Date.
(r) The Merger Agreement has been duly authorized, executed and
delivered by the Company.
(s) [intentionally omitted]
(t) The statistical and market-related data included in the
Prospectus or incorporated therein by reference are based on or derived
from sources which the Company believes to be reliable and accurate in all
material respects.
(u) Except as otherwise set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
its Subsidiaries is a party or of which any of their respective property
is the subject which are required to be described in the Registration
Statement or Prospectus, and to the best of the Company's knowledge, no
such proceedings are threatened. No contract or other document of a
character required to be filed as an exhibit to the Registration Statement
is not so filed as required.
(v) (i) The Company and each of its Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any
applicable foreign, federal, state or local law or regulation relating to
the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants, as are necessary
to own, lease and operate its respective properties and to conduct its
business in the manner described in the Prospectus; (ii) neither the
Company nor any of its Subsidiaries has received notice of any proceedings
relating to the revocation or termination of any such permits; except, in
the case of clauses (i) and (ii), where failure to have such permits, or
the revocation or termination of any such permits would not, individually
or in the aggregate, result in a Material Adverse Effect.
(w) The Company and each of its Subsidiaries has good and marketable
title, free and clear of all liens, claims, encumbrances and restrictions
to all property and
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assets described in the Registration Statement as being owned by it except
for any such liens (i) set forth in Annex II hereto, (ii) for taxes not
yet due and payable or for taxes being contested in good faith and for
which adequate reserves, in accordance with generally accepted accounting
principles, have been taken or (iii) as would not, individually or in the
aggregate, have a Material Adverse Effect.
(x) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(y) Except as set forth in the Prospectus, no holder of any security
of the Company has any right to require registration of shares of Class A
Common Stock or any other security of the Company.
(z) The Company and/or its Subsidiaries owns all rights to or has
the right to use the designs embodying all of the patents, trademarks,
service marks, trade names, copyrights, licenses and rights presently used
by them in the conduct of the Company's business and neither the Company
nor any of its Subsidiaries has received notice or is otherwise aware of
any conflict with the rights of others, the result of which conflict is
reasonably likely to result in a Material Adverse Effect, and to the best
of the Company's knowledge, there is no infringement on such patents,
trademarks, servicemarks, trade names, copyrights, licenses and right by
others the result of which infringement is reasonably likely to result in
a Material Adverse Effect.
(aa) Price Waterhouse LLP are independent public accountants with
respect to the Company as required by the Act.
(ab) The financial statements, together with related schedules and
notes forming part of the Registration Statement and the Prospectus (and
any amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial
position of the Company and its Subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and
data set forth or incorporated by reference in the Registration Statement
and the Prospectus (and any amendment or supplement thereto) is, in all
material respects, accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company
and its Subsidiaries.
(ac) The pro forma financial information and the related notes
thereto included in the Registration Statement (and any amendment or
supplement thereto) have been prepared in accordance with the applicable
requirements of the Act, include all adjustments necessary to present
fairly in all material respects the pro forma financial condition and
results of operations at the respective dates and for the respective
periods indicated.
11
(ad) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(ae) Except as set forth in or contemplated by the Registration
Statement and the Prospectus, subsequent to the respective dates as of
which information is given therein and up to and including the Closing
Date, (i) none of the Company or any of its Subsidiaries has incurred any
liabilities or obligations, direct or contingent, that are material to the
Company and its Subsidiaries, taken as a whole, which have materially
changed the financial position of the Company, (ii) none of the Company or
any of its Subsidiaries has entered into any transactions that are
material to the Company and its Subsidiaries, taken as a whole, outside of
the ordinary course of business, (iii) there has not been any material
adverse change in the business, condition (financial or otherwise),
results of operations, properties or prospects of the Company and its
Subsidiaries, taken as a whole (each, a "Material Adverse Change") and
(iv) there has not been any change in the capital stock or increase in
short-term or long-term debt of the Company or any of its Subsidiaries
(other than as a result of revolving borrowings for working capital
incurred in the ordinary course of business), or any issuance of options
or warrants to purchase capital stock of the Company or any of its
Subsidiaries, or any payment of or declaration to pay any dividends or
other distribution with respect to the capital stock of the Company.
(af) Except as disclosed in the Prospectus (including with respect
to this Agreement), neither the Company nor any Subsidiary is a party to
any contract, agreement or understanding with any person that would give
rise to a valid claim against the Company or any Subsidiary or the
Underwriters for a brokerage commission, finder's fee or like payment in
connection with the offering of the Securities.
7. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented), any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished in writing to the Company or on
behalf of any Underwriter through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages and
liabilities and judgments purchased Securities, or any person controlling
such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or delivered by or on behalf of such
Underwriter to such person,
12
if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and if the
Prospectus (as amended and supplemented) would have cured the defect
giving rise to such loss, claim, damage, liability or judgment. In
addition, the Company agrees to indemnify and hold harmless any
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against all costs of such Underwriter or controlling person
(including reasonable fees and expenses of counsel) incurred in connection
with the enforcement by the Underwriter or such controlling person of the
indemnification provisions of Section 7(a) of this Agreement against the
Company.
(b) In case any action shall be brought against any Underwriter or
any person controlling such Underwriter, based upon any preliminary
prospectus, the Registration Statement or the Prospectus, any amendment or
supplement thereto or any document incorporated therein by reference and
with respect to which indemnity may be sought against the Company, such
Underwriter shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all
reasonable fees and expenses; provided that the Company shall not be
liable to such indemnified party for any legal expenses of other counsel
or any other expenses, in each case, subsequently incurred by such
indemnified party, in connection with the defense thereof, other than the
reasonable cost of the investigation. Any Underwriter or any such
controlling person shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the employment of such counsel has been
specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel or (iii) the named
parties to any such action (including any impleaded parties) include both
such Underwriter or such controlling person and the Company and such
Underwriter or such controlling person shall have been advised by such
counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the Company, in
which case the Company shall not have the right to assume the defense of
such action on behalf of such Underwriter or such controlling person and
the Company shall be liable for the reasonable legal expenses of counsel
to such Underwriter or such controlling person in connection with the
defense of such action, provided that such counsel to such Underwriter or
such controlling person shall use reasonable efforts to coordinate with
counsel to the Company on overlapping issues, it being understood,
however, that the Company shall not, in connection with any one such
action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to one separate firm of local
counsel in each such jurisdiction) at any time, for all such Underwriters
and controlling persons, which firm shall be designated in writing by DLJ
and that all such fees and expenses shall be reimbursed promptly upon
request. The Company shall not be liable for any settlement of any action
subject to indemnification hereunder effected without the written consent
13
of the Company but if settled with the written consent of the Company, the
Company agrees to indemnify and hold harmless any Underwriter and any such
controlling person from and against any loss or liability by reason of
such settlement. In addition, the Company shall be liable for any
settlement of any such action effected with the Company's prior written
consent, which consent shall not be unreasonably withheld. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each
Underwriter but only with reference to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement or the
Prospectus (as amended or supplemented) or any preliminary prospectus. In
case any action shall be brought against the Company, any of its
directors, any such officer or any person controlling the Company based on
the Registration Statement or the Prospectus (as amended or supplemented)
or any preliminary prospectus and in respect of which indemnity may be
sought against any Underwriter, the Underwriter shall have the rights and
duties given to the Company (except that if the Company shall have assumed
the defense thereof, such Underwriter shall not be required to do so, but
may employ separate counsel therein and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), and the Company, its directors, any such officers and any
person controlling the Company shall have the rights and duties given to
the Underwriter, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and judgments (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other
hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
and the Underwriters in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to be in the
same proportion as the total proceeds from the offering (before deducting
14
expenses but after deducting underwriting discounts and commissions)
received by the Company and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the
public of the Securities, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and the
Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or judgments referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7(b) are several in proportion to the respective
number of Securities purchased by each of the Underwriters hereunder and
not joint.
8. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Securities on the Closing Date are
subject to the satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing Date,
with the same force and effect as if made on and as of the Closing Date.
The Company shall have performed or complied in all material respects with
all of the agreements herein contained and required to be performed or
complied with by the Company at or prior to the Closing Date.
(b)(i) The Registration Statement shall have become effective (or if
(i) a post-effective amendment thereto (including any such amendment
required to be filed pursuant to Rule 430A under the Act) or (ii) a new or
additional registration statement pursuant to Rule 462 under the Act has
been filed, such post-effective amendment or new or additional
registration statement (as applicable) shall become effective) not later
than 3:30
15
p.m. New York City time on the date hereof or at such later date and time
as you may approve in writing, (ii) at the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission and every
comment by or request for additional information on the part of the
Commission or any securities commission or regulatory authority of the
several states or any foreign jurisdiction shall have been responded to or
complied with in all material respects and (iii) no stop order suspending
the sale of the Securities in any jurisdiction designated by the
Underwriters pursuant to Section 5(h) hereof shall have been issued and no
proceeding for that purpose shall have been commenced and be pending
before any securities regulators, and the Company shall not have received
notice of the contemplation of any such issuance by any such securities
regulator.
(c) Subsequent to the effective date of this Agreement, except as
set forth in the Registration Statement and the Prospectus, (i) there
shall not have been any Material Adverse Change, or any development
involving a prospective Material Adverse Change, whether or not arising in
the ordinary course of business of the Company, (ii) there shall not have
been any change, or any development involving a prospective material
adverse change, in the capital stock or in the long-term debt of the
Company or any of its Subsidiaries (other than as a result of borrowings
(revolving or other) for working capital incurred in the ordinary course
of business), (iii) the Company and its Subsidiaries shall not have
incurred any liability or obligation, direct or contingent, which is
material to the Company and its Subsidiaries, taken as a whole and which
have materially changed the financial position of the Company and its
Subsidiaries, taken as a whole and (iv) on the Closing Date, you shall
have received a certificate dated the Closing Date signed by ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, in their capacities as (A) the
President and Chief Executive Officer and (B) Executive Vice President and
Chief Financial Officer of the Company, respectively, confirming the
matters set forth in paragraphs (a), (b), and (c) of this Section 8.
(d) You shall have received on the Closing Date an opinion (in the
form attached hereto as Annex II), dated the Closing Date of Winthrop,
Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Company, with respect
to the Company and its Subsidiaries. The opinion of Winthrop, Stimson,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall be rendered to you at the request of the Company
and shall so state therein.
(e) You shall have received on the Closing Date an opinion (in the
form attached hereto as Annex III), dated the Closing Date of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Company, with respect to the
Company and its Subsidiaries. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
shall be rendered to you at the request of the Company and so state
therein.
(f) You shall have received on the Closing Date an opinion (in the
form attached hereto as Annex IV), dated the Closing Date of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, counsel for the Company, with respect to the Company and its
Subsidiaries. The opinion of
16
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall be rendered to you at the request of the Company
and shall so state therein.
(g) You shall have received on the Closing Date an opinion, dated
the Closing Date of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, in
form and substance reasonably satisfactory to the Underwriters.
(h) You shall have received a letter concurrently with the execution
of this Agreement and on and as of the Closing Date in form and substance
reasonably satisfactory to you, from Price Waterhouse LLP, independent
public accountants, with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus and/or incorporated therein by reference.
(i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have been furnished with such documents
as they may reasonably require for the purpose of enabling them to review
or pass upon the matters referred to in this Section 8.
(j) The Company and the Trustee shall have entered into the
Indenture and the Underwriters shall have received counterparts, conformed
as executed, thereof.
(k) The Merger Agreement shall have been executed and delivered by
the parties thereto and shall be in force and effect.
(l) The Underwriters shall be satisfied that the Merger and the
Credit Facilities shall have been consummated or will be consummated on
the Closing Date on the terms described in the Registration Statement.
All opinions, certificates, letters and other documents required by
this Section 8 to be delivered by the Company will be in compliance with the
provisions hereof if and only if they are reasonably satisfactory in form and
substance to the Underwriters. The Company will furnish the Underwriters with
such conformed copies of such opinions, certificates, letters and other
documents as the Underwriters or their counsel shall reasonably request.
9. Effective Date of Agreement and Termination. This Agreement shall
become effective upon the later of (i) execution of this Agreement, (ii) when
notification of the effectiveness of the Registration Statement has been
released by the Commission and (iii) if a post-effective amendment to the
Registration Statement has been filed (including any post-effective amendment
required to be filed pursuant to Rule 430A) or a new or additional registration
statement has been filed (including any new or additional registration statement
required to be filed pursuant to Rule 462 under the Act), the effectiveness of
such post-effective amendment or new or additional registration statement. Until
this Agreement becomes effective
17
as aforesaid, it may be terminated by the Company by notifying the Underwriters
or by the Underwriters by notifying the Company.
This Agreement may be terminated at any time after it becomes
effective and prior to the Closing Date by you by written notice to the Company
if any of the following has occurred: (i) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and would, in your
judgment, make it impracticable to market the Securities on the terms and in the
manner contemplated in the Prospectus, or (ii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market or limitation on prices for
securities on any such exchange or the Nasdaq National Market or (iii) the
declaration of a banking moratorium by either federal or New York State
authorities.
If on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase the Securities which it or they have agreed to
purchase hereunder on such date and the aggregate number of Securities, which
such defaulting Underwriter or Underwriters, as the case may be, agreed but
failed or refused to purchase is not more than one-tenth of the total number of
Securities to be purchased on such date by all Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the number of
Securities set forth opposite its name in Annex I bears to the total number of
Securities which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Securities which such defaulting Underwriter or Underwriters, as the case
may be, agreed but failed or refused to purchase on such date; provided that in
no event shall the number of Securities which any Underwriter has agreed to
purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such number of Securities without the
written consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
number of Securities with respect to which such default occurs is more than
one-tenth of the aggregate number of Securities to be purchased on such date by
all Underwriters and arrangements satisfactory to you and the Company for
purchase of such Securities are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and the Prospectus or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of any such Underwriter under this
Agreement.
10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (a) if to the Company, to
Amphenol Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇,
Attention: President, and (b) if to any Underwriter or to you, to ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, 2121 Avenue
18
of the Americas, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company and the several
Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Securities, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter or by or on behalf of
the Company, the officers or directors of the Company or any controlling person
of the Company, (ii) acceptance of the Securities and payment for them hereunder
and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms
hereof or to fulfill any of the conditions set forth in Section 8 of this
Agreement, other than by reason of a default under this Agreement by an
Underwriter, the Company agrees to reimburse the several Underwriters upon
demand accompanied by reasonable supporting documentation for all out-of-pocket
expenses (including the reasonable fees and disbursements of counsel) reasonably
incurred by them in connection with the matters contemplated by this Agreement.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Securities from any of the several Underwriters merely because of
such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
[Signature page follows]
19
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriters.
Very truly yours,
AMPHENOL CORPORATION
By:___________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By:__________________________
Name:
Title:
20
ANNEX I
Underwriter Principal Amount of
Securities to be
Purchased
------------------------
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation......................... $
▇▇▇▇▇▇ Brothers Inc..............................
BT Securities Corporation........................
Chase Securities Inc.............................
========================
Total $ 240,000,000
I-1
ANNEX II
Form of Opinion of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
[See also attached opinion points]
II-1
ANNEX III
Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement
or the Prospectus and take no responsibility therefor. In the course of
the preparation by the Company of the Registration Statement and the
Prospectus, we participated in conferences with certain officers and
employees of the Company, with representatives of Price Waterhouse LLP and
with counsel to the Company. We discussed the Registration Statement and
the Prospectus with the Company and with counsel to the Company prior to
their filing with the Securities and Exchange Commission (the
"Commission"). Based upon our examination of the Registration Statement
and Prospectus, our investigations made in connection with the preparation
of the Registration Statement and the Prospectus and our participation in
the conferences referred to above, we have no reason to believe that
Registration Statement (or any amendment thereto made prior to the Closing
Date as of the date of such amendment), at the time it became effective,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Prospectus, at the time
it was filed with the Commission pursuant to Rule 424(b) and at the date
hereof, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that we express no belief with respect
(i) to the financial statements or other financial or statistical data
contained or incorporated by reference in either the Registration
Statement of the Prospectus, (ii) that part of the Registration Statement
which constitutes the Trustee's Statement of Eligibility under the Trust
Indenture Act on Form T-1 or (iii) the statements therein concerning the
Depository Trust Company ("DTC") and DTC's book-entry system.
[See attached opinion points]
V-1
ANNEX IV
Form of Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
I have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement
or the Prospectus and take no responsibility therefor. In the course of
the preparation by the Company of the Registration Statement and the
Prospectus, I participated in conferences with certain officers and
employees of the Company, with representatives of Price Waterhouse LLP and
with counsel to the Underwriters. We discussed the Registration Statement
and the Prospectus with the Company and with counsel to the Underwriters
prior to their filing with the Securities and Exchange Commission (the
"Commission"). Based upon my examination of the Registration Statement and
Prospectus, my investigations made in connection with the preparation of
the Registration Statement and the Prospectus and my participation in the
conferences referred to above, I have no reason to believe that
Registration Statement (or any amendment thereto made prior to the Closing
Date as of the date of such amendment), at the time it became effective,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Prospectus, at the time
it was filed with the Commission pursuant to Rule 424(b) and at the date
hereof, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that I express no belief with respect
(i) to the financial statements or other financial or statistical data
contained or incorporated by reference in either the Registration
Statement of the Prospectus, (ii) that part of the Registration Statement
which constitutes the Trustee's Statement of Eligibility under the Trust
Indenture Act on Form T-1 or (iii) the statements therein concerning the
Depository Trust Company ("DTC") and DTC's book-entry system.
[See also attached opinion points]
VI-(1)
Opinion Points
(a) Such counsel has been advised that the Registration Statement
has become effective under the Act, the Prospectus either was filed with
the Commission pursuant to the Act or was included in the Registration
Statement (as the case may be), and no stop order suspending its
effectiveness has been issued and no proceedings for that purpose are, to
the knowledge of such counsel, pending before, threatened or contemplated
by the Commission.
(b) The Registration Statement (including any Registration Statement
filed under Rule 462(b) of the Act, if any) and the Prospectus and any
supplement or amendment thereto (except for financial statements as to
which no opinion need be expressed) comply as to form in all material
respects with the Act.
(c) The Company and each of its Subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as it is currently being conducted
and to own, lease and operate its properties. The Company is duly
qualified and is in good standing as a foreign corporation authorized to
do business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification, except
where to failure to be so qualified would not have a material adverse
effect on the business, condition (financial or otherwise), results of
operations, properties or prospects of the Company and its Subsidiaries,
taken as a whole (each, a "Material Adverse Effect"). The term
"Subsidiary" means each person with at least nominal assets of which a
majority of the voting equity securities or other interests is owned,
directly or indirectly, by the Company as of the Closing Date, such
persons being referred to collectively as the "Subsidiaries."
(d) Each Subsidiary of the Company that is not a Domestic Subsidiary
and would constitute a "significant subsidiary" (as defined in Section
1-02 of Regulation S-X of the Commission) has been duly incorporated (or
the equivalent thereof), is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and has the
corporate power and required authority to carry on its business as it is
currently being conducted and to own, lease and operate its properties.
(e) Each of the Domestic Subsidiaries is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect.
(f) Each Subsidiary of the Company that is not a Domestic Subsidiary
and would constitute a "significant subsidiary" (as defined in Section
1-02 of Regulation S-X of the Commission) is duly qualified and is in good
standing (or the equivalent thereof) as a foreign corporation authorized
to do business in each jurisdiction in which the nature
(i)
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have
a Material Adverse Effect.
(g) The Securities have each been duly authorized by the Company
and, when the Securities are executed by the Company and authenticated by
the Trustee in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, the Securities will be entitled to the
benefits of the Indenture and will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms,
subject to the effects of (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally, and (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(h) The Securities, the Indenture and each of the Transaction
Documents conform as to legal matters to the description thereof contained
in the Prospectus.
(i) The statements under the captions "Related Party Transactions,"
"Description of Credit Facilities," "Description of the Notes" and
"Underwriting" in the Prospectus, as amended or supplemented, and Items 14
and 15 of Part II of the Registration Statement insofar as such statements
constitute a summary of legal matters documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings;
(j) The Indenture has been duly qualified under the Trust Indenture
Act, and has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) as such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws now
or hereafter in effect relating to or affecting creditors' rights
generally; (ii) that the remedies of specific performance and injunctive
and other forms of relief are subject to general equitable principles,
whether enforcement is sought at law or in equity, and that such
enforcement may be subject to the discretion of the court before which any
proceedings therefor may be brought; and (iii) as rights to indemnity and
contribution may be limited by state or federal laws relating to
securities or by the policies underlying such laws.
(k) This Agreement has been duly authorized, executed and delivered
by the Company.
[ (l) Neither the Company nor any of its Subsidiaries is in violation or
default under (i) its respective charter or by-laws, (ii) in default in
any material respect in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or instrument material
to the conduct of the business of the Company and its Subsidiaries, taken
as a whole, to which the Company or any of its Subsidiaries is a party or
by which
(ii)
it or any of its Subsidiaries or their respective property is bound or
(iii) any law, statute, rule, regulation, judgment or court decree
applicable to the Company or any of its Subsidiaries.]
(m) The execution, delivery and performance of the Transaction
Documents by the Company, compliance by the Company with all the
provisions thereof and the consummation of the transactions contemplated
thereby will not conflict with, constitute a default under or violate (i)
any of the terms, conditions or provisions of the certificate of
incorporation or by-laws of the Company or any of its Subsidiaries, (ii)
any of the terms, conditions or provisions of any document, agreement,
indenture or other instrument to which the Company or any of its
Subsidiaries is a party or by which the Company, any of its Subsidiaries
or their respective properties are bound [, other than the indenture
governing the Existing Senior Notes] or (iii) any judgment, writ,
injunction, decree, order or ruling of any court or governmental authority
binding on the Company, any of its Subsidiaries or their respective
properties. No consent, approval, waiver, license or authorization or
other action by or filing with any governmental authority is required in
connection with the execution, delivery and performance by the Company of
the Transaction Documents or the consummation by the Company of the
transactions contemplated hereby and thereby, except under the Act and the
state or foreign securities or blue sky laws.
(n) The Company has all requisite corporate power and authority to
enter into the Merger Agreement and to consummate the transactions
contemplated thereby. The Merger Agreement has been duly authorized,
executed and delivered by the Company.
(o) Except as otherwise set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
its Subsidiaries is a party or of which any of their respective property
is the subject which is required to be described in the Registration
Statement or Prospectus, and to the best of such counsel's knowledge after
due inquiry, no such proceedings are threatened or contemplated. No
contract or other document of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement is not so described or filed as required.
(p) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(iii)