2,750,000 SHARES
AMPHENOL CORPORATION
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
December __, 1999
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Amphenol Corporation, a Delaware corporation (the "COMPANY"),
proposes to issue and sell 2,750,000 shares of its Class A common stock, par
value $.001 per share (the "FIRM SHARES"), to the several underwriters named in
SCHEDULE I hereto (the "UNDERWRITERS"). The Company also proposes to issue and
sell to the several Underwriters not more than an additional 412,500 shares of
its 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."
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. 333-91183),
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.
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, the Company agrees to issue and sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a price per Share of $___ (the "PURCHASE PRICE"),
the number of Firm Shares set forth opposite the name of such Underwriter in
SCHEDULE I hereto.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to issue and sell the Additional Shares to the Underwriters and the Underwriters
shall have the right to purchase, severally and not jointly, up to 412,500
Additional Shares from the Company at the Purchase Price, less an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Firm Shares but not payable on the Additional Shares. 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 Company 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 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 Company 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 Company 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.
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The Company 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. 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 II 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.
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 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.
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
Company shall deliver the Shares, with any transfer taxes thereon duly paid by
the Company, 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 Company 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 ________, 1999 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
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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 8 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.
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 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
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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 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) To mail and make generally available to its stockholders
as soon as reasonably practicable an earnings statement for the
twelve-month period ending December 31, 2000 that shall satisfy the
provisions of the last paragraph of Section 11(a) of the Act.
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(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 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 and
accountants, (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 of its 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).
(k) 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.
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
6
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
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.
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(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."
(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
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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
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights; and
the Shares have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor as provided by this
Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Shares will not be 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 September 30, 1999 set forth in the Prospectus
under the heading "Capitalization" (except for subsequent issuances, if
any, pursuant to existing employee benefit plans and reservations or
agreements that are listed on SCHEDULE III 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.
(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
9
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, the compliance by the Company with all the provisions
hereof and the consummation of the transactions contemplated hereby
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 or the consummation by the
Company of the transactions contemplated hereby, 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
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
10
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 and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(w) Except as (i) set forth in the Prospectus or (ii) pursuant
to the Registration Rights Agreement dated as of May 19, 1997 by and
among the Company and the persons signatory thereto, 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. PricewaterhouseCoopers LLP were independent public
accountants with respect to the Company as required by the Act
for the year ended December 31, 1996.
(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 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.
11
(aa) 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.
(bb) 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.
(cc) 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.
(dd) There are no parties that have rights to register any securities
of the Company, other than KKR 1996 Fund L.P., NXS Associates, L.P., KKR
Partners II, L.P. and NXS I, L.L.C. each of who has waived such rights by
executing the Registration Rights Waiver dated the date hereof.
(ee) 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.
(ff) 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.
12
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 Shares, 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, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Shares 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
13
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 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Securities Corporation
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 of the Company,
which consent shall not be unreasonably withheld, 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. 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
14
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 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 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 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 Shares, 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
15
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 Shares underwritten by it
and distributed 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 7(b) are several in proportion to the respective number
of Shares purchased by each of the Underwriters hereunder and not joint.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the 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 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 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
16
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 8 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) 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, 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 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.
(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 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.
(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.
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 8 to be delivered by the Company will be in compliance
with the provisions hereof if and only if they
17
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 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 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 9 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
such date by all Underwriters and arrangements satisfactory to you and the
Company for
18
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 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. 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.
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, to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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 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 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 Shares 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 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.
19
This Agreement may be signed in various counterparts, which
together shall constitute one and the same instrument.
[Signature page follows]
20
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
AMPHENOL CORPORATION
By: ____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
SALMON ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
Acting severally on behalf of themselves
and the several Underwriters named in SCHEDULE I hereto
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By:
_______________________________
Name:
Title:
SCHEDULE I
Underwriter Number of Firm Shares
----------- to be Purchased
---------------
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation..............................................
▇▇▇▇▇▇ Brothers Inc....................................................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.....................
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc...............................................
================
Total 2,750,000
I-1
SCHEDULE II
PARTIES DELIVERING A LOCK-UP AGREEMENT
DIRECTORS AND EXECUTIVE OFFICERS
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
G. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
STOCKHOLDERS
KKR 1996 FUND L.P.
NXS ASSOCIATES, L.P.
KKR PARTNERS II, ▇.▇.
▇▇-1
SCHEDULE III
III-1
