EXHIBIT 1.1
6,000,000 SHARES
AMPHENOL CORPORATION
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
May __, 2000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Certain stockholders named in SCHEDULE II hereto (the "SELLING
STOCKHOLDERS") of Amphenol Corporation, a Delaware corporation (the "COMPANY"),
severally and not jointly, propose to sell to the several underwriters named in
SCHEDULE I hereto (the "UNDERWRITERS"), an aggregate of 6,000,000 shares of the
Class A common stock, par value $.001 per share (the "FIRM SHARES"). Each
Selling Stockholder is selling the number of Firm Shares set forth opposite such
Selling Stockholder's name in SCHEDULE II hereto.
The Selling Stockholders also propose to sell to the several
Underwriters not more than an additional 900,000 shares, in the aggregate, of
the Class A common stock (the "ADDITIONAL SHARES") if requested by the
Underwriters as provided in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter referred to collectively as the "SHARES". The shares of
Class A common stock of the Company to be outstanding after giving effect to the
sales contemplated hereby are hereinafter referred to as the "COMMON STOCK."
SECTION 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, the "ACT"), a registration statement on Form S-3 (No. 333-_____),
including a prospectus relating to the Shares. The registration statement as
amended at the time it became 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 the Shares 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 Shares as contemplated by Section
5 hereof which differs from the form of prospectus first used to confirm sales
of the Shares, 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, 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.
SECTION 2. AGREEMENTS TO SELL AND PURCHASE AND LOCK-UP AGREEMENTS. On
the basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, (i) each Selling Stockholder agrees,
severally and not jointly, to sell the number of Firm Shares set forth opposite
such Selling Stockholder's name in SCHEDULE II hereto and (ii) each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder, at
a price per Share of $________ (the "PURCHASE PRICE"), the number of Firm Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the total number of Firm Shares to
be sold by such Selling Stockholder as the number of Firm Shares set forth
opposite the name of such Underwriter in SCHEDULE I hereto bears to the total
number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Selling Stockholders,
severally and not jointly, agree to sell the Additional Shares to the
Underwriters, and the Underwriters shall have the right to purchase, severally
and not jointly, up to 900,000 Additional Shares from the Selling Stockholders
at the Purchase Price. Additional Shares may be purchased solely for the purpose
of covering over-allotments made in connection with the offering of the Firm
Shares. The Underwriters may exercise their right to purchase Additional Shares
in whole or in part from time to time by giving written notice thereof to the
Selling Stockholders within 30 days after the date of this Agreement. You shall
give any such notice on behalf of the Underwriters and such notice shall specify
the aggregate number of Additional Shares to be purchased pursuant to such
exercise and the date for payment and delivery thereof, which date shall be a
business day (i) no
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earlier than two business days after such notice has been given (and, in any
event, no earlier than the Closing Date (as defined below)) and (ii) no later
than ten business days after such notice has been given. If any Additional
Shares are to be purchased, each Underwriter, severally and not jointly, agrees
to purchase from the Selling Stockholders the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased from the Selling Stockholders as the number of Firm
Shares set forth opposite the name of such Underwriter in SCHEDULE I bears to
the total number of Firm Shares.
Each of the Company and the Selling Stockholders hereby agrees not to
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other arrangement that transfers all or a portion of the economic consequences
associated with the ownership of any Common Stock (regardless of whether any of
the transactions described in clause (i) or (ii) is to be settled by the
delivery of Common Stock, or such other securities, in cash or otherwise),
except to the Underwriters pursuant to this Agreement, for a period of 90 days
after the date of the Prospectus without the prior written consent of ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation. Notwithstanding the foregoing, during
such period (i) the Company may grant stock options pursuant to the Company's
existing stock option plan, (ii) the Company may issue shares of Common Stock
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof, and (iii) the Company may issue shares of Common
Stock as consideration for acquisitions made by the Company or its Subsidiaries.
The Company also agrees not to file any registration statement with respect to
any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock for a period of 90 days after the date of the
Prospectus without the prior written consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation. In addition, each Selling Stockholder agrees that, for a
period of 90 days after the date of the Prospectus without the prior written
consent of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, it will not make
any demand for, or exercise any right with respect to, the registration of any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock. The Company shall, prior to or concurrently with
the execution of this Agreement, deliver an agreement executed by each of the
parties listed on SCHEDULE III hereto to the effect that such person will not,
during the period commencing on the date such person signs such agreement and
ending 90 days after the date of the Prospectus, without the prior written
consent of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, (A) engage in
any of the transactions described in the first sentence of this paragraph or (B)
make any demand for, or exercise any right with respect to, the registration of
any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock.
SECTION 3. TERMS OF PUBLIC OFFERING. The Company and the Selling
Stockholders are advised by you that the Underwriters propose (i) to make a
public offering of their respective portions of the Shares as soon after the
effective date of the Registration Statement as in your judgment is advisable
and (ii) initially to offer the Shares upon the terms set forth in the
Prospectus.
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SECTION 4. DELIVERY AND PAYMENT. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
shall request no later than two full business days prior to the Closing Date or
the applicable Option Closing Date (as defined below), as the case may be. The
Shares shall be delivered by or on behalf of the Selling Stockholders, with any
transfer taxes thereon duly paid by the respective Selling Stockholders, to
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation through the facilities of
The Depository Trust Company ("DTC"), for the respective accounts of the several
Underwriters, against payment to the Selling Stockholders of the Purchase Price
therefore by wire transfer of Federal or other funds immediately available in
New York City. The certificates representing the Shares shall be made available
for inspection not later than 9:30 A.M., New York City time, on the business day
prior to the Closing Date or the applicable Option Closing Date (as defined
below), as the case may be, at the office of DTC or its designated custodian
(the "DESIGNATED OFFICE"). The time and date of delivery and payment for the
Firm Shares shall be 9:00 A.M., New York City time, on May __, 2000 or such
other time on the same or such other date as you and the Company shall agree in
writing. The time and date of delivery for the Firm Shares are hereinafter
referred to as the "CLOSING DATE". The time and date of delivery and payment for
any Additional Shares to be purchased by the Underwriters shall be 9:00 A.M.,
New York City time, on the date specified in the applicable exercise notice
given by you pursuant to Section 2 or such other time on the same or such other
date as you and the Company shall agree in writing. The time and date of
delivery for the Option Shares are hereinafter referred to as an "OPTION CLOSING
DATE".
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 9 of this Agreement
shall be delivered at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and the Shares shall be delivered at the Designated Office,
all on the Closing Date or such Option Closing Date, as the case may be.
SECTION 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-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
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stop order suspending the effectiveness of the Registration Statement
or of the suspension or qualification of the Shares 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.
(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 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) 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 Shares, (i) to
cooperate with you and counsel for the Underwriters in connection with
the registration or qualification of the Shares for offer and sale by
the several Underwriters and by dealers under the state
5
securities or Blue Sky laws of such jurisdictions of the United States
as you may request, (ii) to continue such registration or qualification
in effect so long as required for distribution of the Shares 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 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 Shares, in any jurisdiction where it is not now
so subject.
(i) 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 transfer and delivery of
the Shares to the Underwriters, including any transfer or other taxes
payable thereon; (iv) 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); (v) the registration with the Commission of the
Shares; (vi) the registration or qualification of the Shares 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); (vii)
filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. ("NASD") in connection with the
offering of the Shares; (viii) 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 Shares by the Underwriters;
(ix) fees, disbursements and expenses of the Company's counsel, the
Company's accountants and any Selling Stockholder's counsel (in
addition to the Company's counsel); (x) printing certificates
representing the Shares; (xi) the costs and charges of any transfer
agent, registrar and/or depositary; and (xii) all other reasonable
costs and expenses incident to the performance by the Company and the
Selling Stockholders of their other obligations under this Agreement
(other than each parties' respective share of the costs and expenses
incurred in connection with the roadshow; PROVIDED that the Company and
the Underwriters shall split equally the costs of private air travel).
(j) If the Registration Statement at the time of the
effectiveness of this Agreement does not cover all of the Shares, to
file a Rule 462(b) Registration Statement with the Commission
registering the Shares not so covered in compliance with Rule 462(b) by
10:00 P.M., New York City time, on the date of this Agreement and to
pay to the Commission the filing fee for such Rule 462(b) Registration
Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under
the Act.
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SECTION 6. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to each Underwriter that:
(a) The Registration Statement has become effective (other
than any Rule 462(b) Registration Statement to be filed by the Company
after the effectiveness of this Agreement).
(b) 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.
(c) (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.
(d) (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
7
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 (d) 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 expressly
through you for use therein.
(e) 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 required to be stated therein or 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 (e) do not
apply to statements or omissions in 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
expressly through you for use therein.
(f) Each of the Company and its Subsidiaries (as defined
below) 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,
except where the failure to be duly incorporated or validly existing or
to have such power and authority would not have a Material Adverse
Effect (as defined below). 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").
(g) 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 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."
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(h) 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.
(i) 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.
(j) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
granted or issued by the Company or any of its Subsidiaries relating to
or entitling any person to purchase or otherwise to acquire any shares
of the capital stock of the Company or any of its Subsidiaries, except
as otherwise disclosed in the Registration Statement.
(k) All the outstanding shares of Common Stock of the Company
(including the Shares) have been duly authorized and validly issued and
are fully paid, non-assessable and not subject to any preemptive or
similar rights.
(l) 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.
(m) The Company has the authorized, issued and outstanding
capitalization as of March 31, 2000 set forth in the Prospectus under
the heading "Capitalization", which gives effect to a 2-for-1 stock
split that occurred on April 24, 2000 and an amendment to the Company's
certificate of incorporation to increase the number of authorized
shares to 100,000,000 (but does not include subsequent issuances, if
any, pursuant to existing employee benefit plans and reservations or
agreements that are listed on SCHEDULE IV hereto).
(n) The authorized capital stock of the Company conforms in
all material respects as to legal matters to the description thereof
contained in the Prospectus.
(o) This Agreement has been duly authorized, executed and
delivered by the Company.
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(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 Selling
Stockholders and the Underwriters to consummate the offering of the
Shares, 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 this Agreement
by the Company and the compliance by the Company with all the
provisions hereof 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, 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 this Agreement, 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 statistical and market-related data included in the
Prospectus or incorporated therein by reference are based on or derived
from sources that the Company believes to be reliable and accurate in
all material respects.
(s) 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 that 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.
(t) (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 it is currently being
conducted; (ii) neither the Company nor any of its Subsidiaries has
10
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.
(u) 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 assets described in the Registration
Statement as being owned by it except for any such liens (i) for taxes
not yet due and payable or for taxes being contested in good faith for
which adequate reserves, in accordance with generally accepted
accounting principles, have been taken or (ii) as would not,
individually or in the aggregate, have a Material Adverse Effect.
(v) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(w) Except as pursuant to (i) the Registration Rights
Agreement, dated as of May 19, 1997, by and among the Company and the
persons signatory thereto and (ii) each Management Stockholder's
Agreement, dated as of May 19, 1997, by and between the Company and the
management stockholder named on the face thereof, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with
the Shares registered pursuant to the Registration Statement.
(x) 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.
(y) Deloitte & Touche LLP are independent public accountants
with respect to the Company as required by the Act.
(z) 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 in the Registration
Statement and
11
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.
(aa) 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 entered into any transactions that are material to the Company and
its Subsidiaries, taken as a whole, outside of the ordinary course of
business, (ii) there has not been any material adverse change in 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 CHANGE") and (iii) there has not been any issuance
of options or warrants to purchase capital stock of the Company or any
of its Subsidiaries (other than options or warrants granted pursuant to
the Company's existing stock option plan or similar benefit plan), or
any payment of or declaration to pay any dividends or other
distribution with respect to the capital stock of the Company.
(bb) 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 Shares.
(cc) There are no parties, other than the Selling
Stockholders, that have rights to register any securities of the
Company.
(dd) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a Material
Adverse Effect.
(ee) No labor problem or dispute with the employees of the
Company or any of its Subsidiaries exists or, to the Company's
knowledge, is threatened, and the Company is not aware of any existing
labor dispute by the employees of any of its or its Subsidiaries'
principal suppliers, contractors or customers, that could have a
Material Adverse Effect.
(ff) The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.
Each Selling Stockholder represents and warrants to each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Shares
to be sold by such Selling Stockholder pursuant to this Agreement and
has, and on the Closing Date
12
and any Option Closing Date will have, good and clear title to such
Shares, free of all restrictions on transfer, liens, encumbrances,
security interests, equities and claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have
been duly authorized and validly issued and are fully paid,
non-assessable and were not issued in violation of any preemptive or
similar rights.
(c) Such Selling Stockholder has, and on the Closing Date and
any Option Closing Date will have, full legal right, power and
authority, and all authorization and approval required by law, to enter
into this Agreement, the Custody Agreement signed by such Selling
Stockholder and _____________, as custodian, relating to the deposit of
the Shares to be sold by such Selling Stockholder (the "CUSTODY
AGREEMENT") and the Power of Attorney of such Selling Stockholder
appointing certain individuals as such Selling Stockholder's
attorneys-in-fact (the "ATTORNEYS") to the extent set forth herein,
relating to the transactions contemplated hereby and by the
Registration Statement and the Custody Agreement (the "POWER OF
ATTORNEY") and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Stockholder in the manner provided herein and
therein.
(d) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and
is a valid and binding agreement of such Selling Stockholder,
enforceable in accordance with its terms.
(f) The Power of Attorney of such Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and
is a valid and binding instrument of such Selling Stockholder,
enforceable in accordance with its terms, and, pursuant to such Power
of Attorney, such Selling Stockholder has, among other things,
authorized the Attorneys, or any one of them, to execute and deliver on
such Selling Stockholder's behalf this Agreement and any other document
that they, or any one of them, may deem necessary or desirable in
connection with the transactions contemplated hereby and thereby and to
deliver the Shares to be sold by such Selling Stockholder pursuant to
this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by
such Selling Stockholder pursuant to this Agreement, and, assuming the
Underwriters are acquiring the Shares in good faith without notice of
any adverse claim, within the meaning of the Uniform Commercial Code as
in effect in the State of New York, the Underwriters will be the owner
of the Shares free and clear of all liens, encumbrances, and charges
whatsoever, arising as a result of action by the Selling Stockholders.
(h) The execution, delivery and performance of this Agreement,
the Custody Agreement and the Power of Attorney by or on behalf of such
Selling Stockholder, the compliance by such Selling Stockholder with
all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (i)
13
require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except
such as may be required under the securities or blue sky laws of the
various states), (ii) conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the organizational
documents of such Selling Stockholder, if such Selling Stockholder is
not an individual, or any indenture, loan agreement, mortgage, lease or
other agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder or any property of such
Selling Stockholder is bound and which is material to the business of
such Selling Stockholder or (iii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction over
such Selling Stockholder or any property of such Selling Stockholder.
(i) The information in the Registration Statement under the
caption "Principal and Selling Stockholders" that specifically relates
to such Selling Stockholder does not, and on the Closing Date or any
Option Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(j) At any time during the period described in Section 5(f),
if there is any change in the information referred to in Section 7(i),
such Selling Stockholder will immediately notify you of such change.
(k) Each certificate signed by or on behalf of such Selling
Stockholder and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be a representation and warranty by
such Selling Stockholder to the Underwriters as to the matters covered
thereby.
(l) Such Selling Stockholder is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
SECTION 8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, its officers 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 (including, without
limitation, any legal or other expenses incurred in connection with
investigating or defending any matter, including any action, that could
give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement
thereto) or 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
14
by such 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 who failed to deliver a Prospectus, as then amended or
supplemented, (so long as the Prospectus and any amendment or
supplement thereto was provided by the Company to the several
Underwriters in the requisite quantity and on a timely basis to permit
proper delivery on or prior to the Closing Date) to the person
asserting any losses, claims, damages, liabilities or judgments caused
by any untrue statement or alleged untrue statement of a material fact
contained in such 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, if
such material misstatement or omission or alleged material misstatement
or omission was cured in the Prospectus, as so amended or supplemented,
and such Prospectus was required by law to be delivered at or prior to
the written confirmation of sale to such person.
(b) Each of the Selling Stockholders agrees, severally and not
jointly, to indemnify and hold harmless each Underwriter, its
directors, its officers 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 to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to information
relating to such Selling Stockholder furnished in writing by or on
behalf of such Selling Stockholder expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or
any amendment or supplement thereto) or any preliminary prospectus.
Notwithstanding the foregoing, the aggregate liability of any Selling
Stockholder pursuant to the provisions of this paragraph shall be
limited to an amount equal to the total proceeds (before deducting
underwriting discounts and commissions and expenses) received by such
Selling Stockholder from the Underwriters for the sale of the Shares
sold by such Selling Stockholder hereunder; PROVIDED, HOWEVER, that the
foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter who failed
to deliver a Prospectus, as then amended or supplemented, (so long as
the Prospectus and any amendment or supplement thereto was provided by
the Company to the several Underwriters in the requisite quantity and
on a timely basis to permit proper delivery on or prior to the Closing
Date or the Option Closing Date, as the case may be) to the person
asserting any losses, claims, damages, liabilities or judgments caused
by any untrue statement or alleged untrue statement of a material fact
contained in such 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, if
such material misstatement or omission or alleged material misstatement
or omission was cured in the Prospectus, as so amended or supplemented,
and such Prospectus was required by law to be delivered at or prior to
the written confirmation of sale to such person.
(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, each Selling Stockholder and each person, if any, who
controls such Selling Stockholder within the meaning of Section 15 of
the Act or Section
15
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 any amendment thereto), the Prospectus (or
any amendment or supplement thereto) or any preliminary prospectus.
(d) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a),
8(b) or 8(c) (the "INDEMNIFIED PARTY"), the indemnified party shall
promptly notify the person against whom such indemnity may be sought
(the "INDEMNIFYING PARTY") in writing and the indemnifying party shall
assume the defense of such action, including the employment of counsel
reasonably satisfactory to the indemnified party and the payment of all
fees and expenses of such counsel, as incurred (except that in the case
of any action in respect of which indemnity may be sought pursuant to
both Sections 8(a) and 8(c), or pursuant to both Sections 8(b) and
8(c), the Underwriter shall not be required to assume the defense of
such action pursuant to this Section 8(d), but may employ separate
counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the
expense of such Underwriter). Any indemnified party 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 the indemnified party unless (i) the employment of
such counsel shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed to
assume the defense of such action or employ counsel reasonably
satisfactory to the indemnified party or (iii) the named parties to any
such action (including any impleaded parties) include both the
indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more
legal defenses available to it that are different from or additional to
those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of
such action on behalf of the indemnified party). In any such case, the
indemnifying party shall not, in connection with any one 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 (i) the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all
Underwriters, their officers and directors and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm of attorneys (in addition to any local
counsel) for the Company, its directors, its officers who sign the
Registration Statement and all persons, if any, who control the Company
within the meaning of either such Section and (iii) the fees and
expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all Selling Stockholders and all persons, if
any, who control any Selling Stockholder within the meaning of either
such Section, and all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the
Underwriters, their officers and directors and such control persons of
any Underwriters, such firm shall be designated in writing by
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation. In the case of any
such separate firm for the Company and such directors, officers and
control persons of the Company, such firm shall be designated in
writing by the Company. In the case of any such separate firm for the
16
Selling Stockholders and such control persons of any Selling
Stockholders, such firm shall be designated in writing by the
Attorneys. The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written
consent if the settlement is entered into more than twenty business
days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of
counsel (in any case where such fees and expenses are at the expense of
the indemnifying party) and, prior to the date of such settlement, the
indemnifying party shall have (a) failed to comply with such
reimbursement request or (b) contested, in good faith, such fees and
expenses of counsel. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any
pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or
could have been sought hereunder by the indemnified party, unless such
settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability on claims that are
or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of the indemnified party.
(e) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient 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 or
the Selling Stockholders on the one hand and the Underwriters on the
other hand from the offering of the Shares 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 or the Selling Stockholders on the one hand and the
Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative benefits received by the Company or the Selling Stockholders
on the one hand and the Underwriters on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the
offering (before deducting expenses but after deducting underwriting
discounts and commissions) received by the Company or the Selling
Stockholders, and the total underwriting discounts and commissions
received by the Underwriters, bear to the total price to the public of
the Shares, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Company or the Selling
Stockholders on the one hand and the Underwriters on the other hand
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 Selling Stockholders on the one hand or
the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
17
The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this Section 8(e) 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 that 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 matter, including any action, that could have given rise
to such losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages that 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 8(e) are several in proportion to the respective number
of Shares purchased by each of the Underwriters hereunder and not
joint.
(f) Each Selling Stockholder that is not affiliated with
Kohlberg, Kravis ▇▇▇▇▇▇▇ & Co. L.P. (any such affiliated Selling
Stockholder being referred to as a "KKR SELLING STOCKHOLDER") hereby
designates [NAME OF COMPANY], [ADDRESS OF COMPANY], as its authorized
agent, upon which process may be served in any action which may be
instituted in any state or federal court in the State of New York by
any Underwriter, any director or officer of any Underwriter or any
person controlling any Underwriter asserting a claim for
indemnification or contribution under or pursuant to this Section 8,
and each such Selling Stockholder will accept the jurisdiction of such
court in such action, and waives, to the fullest extent permitted by
applicable law, any defense based upon lack of personal jurisdiction or
venue. A copy of any such process shall be sent or given to such
Selling Stockholder, at the address for notices specified in Section 12
hereof.
SECTION 9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Firm Shares 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 on 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
18
pursuant to Rule 462 under the Act has been filed, such post-effective
amendment or new or additional registration statement (as applicable)
shall have become effective) not later than the opening of business on
the first full business day next following the date of this Agreement
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
Shares 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, in each case set
forth in this clause (iii) that, in your opinion, would materially
adversely affect the offering of the Shares.
(c) Subsequent to the effective date of this Agreement, except
as set forth in or contemplated by 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) and (iii) neither
the Company nor any of 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.
(d) 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)(i) of this Section 9 and that the Company
has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or
satisfied by the Company on or prior to the Closing Date.
(e) All the representations and warranties of each Selling
Stockholder 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, and you shall have received on the Closing Date a
certificate dated the Closing Date from each Selling Stockholder to
such effect and to the effect that such Selling Stockholder has
complied with all of the agreements and satisfied all of the conditions
herein contained and required to be complied with or satisfied by such
Selling Stockholder on or prior to the Closing Date.
19
(f) You shall have received on the Closing Date an opinion (in
the form attached hereto as EXHIBIT A), dated the Closing Date, of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Company and the
Selling Stockholders. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall
be rendered to you at the request of the Company and the Selling
Stockholders and so state therein.
(g) You shall have received on the Closing Date an opinion (in
the form attached hereto as EXHIBIT B), dated the Closing Date, of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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 shall so state
therein.
(h) 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.
(i) 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 Deloitte & Touche
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.
(j) The Company shall have delivered to you the agreements
specified in Section 2 hereof, which agreements shall be in full force
and effect on the Closing Date.
(k) The Shares shall have been duly listed, subject to notice
of issuance, on the NYSE.
(l) You shall have received on the Closing Date, a certificate
of each Selling Stockholder who is not a U.S. Person (as defined under
applicable U.S. federal tax legislation) to the effect that such
Selling Stockholder is not a U.S. Person, which certificate may be in
the form of a properly completed and executed United States Treasury
Department Form W-8 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
(m) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 9.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
All opinions, certificates, letters and other documents required by
this Section 9 to be delivered by the Company will be in compliance with the
provisions hereof if and only if they
20
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.
SECTION 10. 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 as aforesaid, it may be terminated by the
Company or the Selling Stockholders by notifying the Underwriters or by the
Underwriters by notifying the Company and the Selling Stockholders.
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 and the
Selling Stockholders 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 Shares 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, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, or (iv) the declaration of a banking moratorium by
either federal or New York State authorities.
If on the Closing Date or on the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, that it or they have
agreed to purchase hereunder on such date, and the aggregate number of Firm
Shares or Additional Shares, as the case may be, that 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 Firm Shares or
Additional Shares, as the case may be, to be purchased on such date by all
Underwriters, each non-defaulting Underwriter shall be obligated severally, in
the proportion that the number of Firm Shares set forth opposite its name in
SCHEDULE I bears to the total number of Firm Shares that 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 Firm Shares or Additional Shares,
as the case may be, that 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 Firm Shares or Additional Shares, as the
case may be, that any Underwriter has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 10 by an amount in excess of
one-ninth of such number of Firm Shares or Additional Shares, as the case may
be, without the written consent of such Underwriter. If on the Closing Date any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares, and
the aggregate number of Firm Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Firm Shares to be purchased on
21
such date by all Underwriters, and arrangements satisfactory to you and the
Selling Stockholders for purchase of such Firm Shares are not made within 48
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter, the Company or the Selling Stockholders.
In any such case that does not result in termination of this Agreement, either
you or the Selling Stockholders 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. If, on an Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional Shares
and the aggregate number of Additional Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Additional Shares to be
purchased on such date, the non-defaulting Underwriters shall have the option to
(i) terminate their obligation hereunder to purchase such Additional Shares or
(ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase on such date
in the absence of such default. 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.
SECTION 11. AGREEMENTS OF THE SELLING STOCKHOLDERS. Each Selling
Stockholder agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes payable
in connection with the transfer of the Shares to be sold by such
Selling Stockholder to the Underwriters.
(b) To do and perform all things to be done and performed by
such Selling Stockholder under this Agreement prior to the Closing Date
or any Option Closing Date, as the case may be, and to satisfy all
conditions precedent to the delivery of the Shares to be sold by such
Selling Stockholder pursuant to this Agreement.
SECTION 12. 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, (b) if to any KKR Selling Stockholder, to Kohlberg
Kravis ▇▇▇▇▇▇▇ & Co. L.P., ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ____________, (c) if to any other Selling Stockholder, to
[Name of Attorney-in-Fact] c/o [Address of Attorney-in-Fact] and (d) if to
any Underwriter, to ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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, the Selling Stockholders 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 Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the Company, the
officers or directors of the Company, any controlling person of the Company, any
Selling Stockholder or any person controlling such Selling Stockholder, (ii)
acceptance of the Shares and payment for them hereunder and (iii) termination of
this Agreement.
22
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company or any of the Selling
Stockholders to comply with the terms hereof or to fulfill any of the conditions
set forth in Section 9 of this Agreement, other than by reason of a default
under this Agreement by an Underwriter, the Company and the Selling Stockholders
agree 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 Selling
Stockholders, 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 Shares 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]
23
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
AMPHENOL CORPORATION
By: ____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE II HERETO, ACTING SEVERALLY
By: ___________________________
Attorney-in-fact
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
Acting severally on behalf of themselves
and the several Underwriters named in SCHEDULE I hereto
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: _______________________
Name: Jared Felt
Title: Vice President
24
SCHEDULE I
NUMBER OF FIRM SHARES TO BE
UNDERWRITER PURCHASED
----------- ---------------------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation...................................
▇▇▇▇▇▇ Brothers Inc.........................................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated..........
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc....................................
Total.......................................................
===========================
I-1
SCHEDULE II
NUMBER OF FIRM SHARES
SELLING STOCKHOLDER BEING SOLD
------------------- ---------------------
Total
II-1
SCHEDULE III
PARTIES DELIVERING A LOCK-UP AGREEMENT
DIRECTORS AND EXECUTIVE OFFICERS
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
G. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
STOCKHOLDERS
------------
KKR 1996 FUND L.P.
NXS ASSOCIATES, L.P.
KKR PARTNERS II, L.P.
[ADD OTHERS?]
III-1
SCHEDULE IV
None.
IV-1
