Exhibit 70
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated September 28,
1998, between AMP Incorporated, a Pennsylvania corporation (the "Seller"),
and Wachovia Bank N.A., not in its individual or corporate capacity, but
solely in its capacity as trustee (the "Trustee") of the Trust (the
"Trust," which is hereinafter sometimes referred to as the "Purchaser")
under a trust agreement between the Seller and the Trustee dated September
28, 1998 (the "Trust Agreement").
WHEREAS, as contemplated by the Trust Agreement, the Purchaser is
to purchase from the Seller, and the Seller is to issue and sell to the
Purchaser, an aggregate of 25 million authorized but unissued shares (the
"Acquired Shares") of the common stock, no par value, of Seller ("Common
Stock"), all as more specifically provided herein;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and
conditions herein set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
SECTION 1.1 Purchase and Sale. Subject to the terms and
conditions set forth herein, at the Closing (as defined below) the Seller
shall issue and sell to the Purchaser, and the Purchaser shall purchase
from the Seller, the Acquired Shares for a purchase price per share equal
to, $39.1875 the closing price per share of Common Stock on the New York
Stock Exchange on the business day immediately preceding the signing of
this Agreement. In consideration for the Acquired Shares, the Purchaser
will deliver to the Seller at the Closing (as hereinafter defined) a note
substantially in the form of Appendix I to this Agreement in the principal
amount of $979,687,500.00 (the "Note").
SECTION 1.2 Closing. The closing of the sale and purchase of
the Acquired Shares hereunder (the "Closing") will be held at the offices
of the Seller on such date as the Purchaser may designate, but in no event
prior to October 5, 1998.
SECTION 1.3 Delivery and Payment. At the Closing, the Seller
will deliver to the Purchaser a certificate representing the Acquired
Shares, which certificate shall be registered in the name of the Trustee,
or the name of its nominee, against payment by the Purchaser to the Seller
of the aggregate consideration set forth in Section 1.1 therefor. The
Seller will pay all stamp and other transfer taxes, if any, that may be
payable in respect of the sale and delivery of the Acquired Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser, as of the
date of this Agreement, as follows:
SECTION 2.1 Corporate Existence and Authority. The Seller (a) is
a corporation duly organized, validly existing and in good standing under
the laws of the Commonwealth of Pennsylvania, (b) has all requisite
corporate power to execute, deliver and perform this Agreement and (c) has
taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement.
SECTION 2.2 No Conflict. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby
will violate, conflict with or constitute a default under (a) the Seller's
certificate of incorporation or bylaws, (b) any agreement, indenture or
other instrument to which the Seller is a party or by which the Seller or
its assets may be bound or (c) any law, regulation, order, arbitration,
award, judgment or decree applicable to the Seller.
SECTION 2.3 Validity. This Agreement has been duly executed and
delivered by the Seller and is a valid and binding agreement of the Seller
enforceable against the Seller in accordance with its terms, except as the
enforceability thereof may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity.
SECTION 2.4 The Acquired Shares. The Acquired Shares have been
duly authorized and when sold as contemplated hereby will be validly
issued, fully-paid and nonassessable shares of the Seller. No stockholder
of the Seller has any preemptive or other subscription right to acquire any
Acquired Shares. The Seller will convey to the Purchaser, on the date of
Closing, good and valid title to the Common Shares, free and clear of any
liens, claims, security interests and encumbrances, except for those liens,
claims, security interests and encumbrances described in the Trust
Agreement, including Section 3.3 thereof (relating to the delivery of trust
assets to general creditors of the Company).
SECTION 2.5 Business and Financial Information. Seller has
previously delivered (or prior to Closing will deliver) to Purchaser copies
of (a) the consolidated balance sheets of Seller and its subsidiaries, as
of December 31, 1997 and September 30, 1997, and the related consolidated
statements of operations, stockholders' equity and cash flows for the
fiscal years then ended, as reported in Seller's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997, filed with the Securities and
Exchange Commission (the "SEC") under the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and (b) the unaudited consolidated balance
sheet of Seller and its subsidiaries as of March 31, 1998, and June 30,
1998 and the related unaudited consolidated statements of operations,
stockholders' equity and cash flows for the quarterly periods then ended as
reported in Seller's Quarterly Report on Form 10-Q for the period ended
June 30, 1998, filed with the SEC under the Exchange Act. The June 30,
1998 consolidated balance sheet of Seller (including the related notes,
where applicable) fairly presents the consolidated financial position of
Seller and its subsidiaries as of the date thereof, and the other financial
statements referred to in this Section 2.5 (including the related notes,
where applicable) fairly present (subject, in the case of the unaudited
statements, to recurring audit adjustments normal in nature and amount) the
results of the consolidated operations and changes in stockholders' equity
and consolidated financial position of Seller and its subsidiaries for the
respective fiscal periods or as of the respective dates therein set forth.
Since June 30, 1998, Seller has filed with the SEC all forms, reports and
documents required pursuant to the Securities Act of 1933, as amended (the
"1933 Act"), and the 1934 Act, to be filed by it (the "Disclosure
Documents"). At the time filed, all of the Disclosure Documents complied
as to form in all material respects with all applicable requirements of
such Acts. None of the Disclosure Documents, at the time filed, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller as
follows:
SECTION 3.1 Authority; Validity. The Purchaser has full power
and authority under the Trust to execute and deliver this Agreement and the
Note and to consummate the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Trustee
on behalf of the Trust and is a valid and binding agreement of the
Purchaser enforceable in accordance with its terms, except as the
enforceability thereof may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity. The Note has been duly authorized by the Trustee on
behalf of the Trust and, upon the execution and delivery by the Trustee on
behalf of the Trust, the Note will be a valid and binding agreement of the
Purchaser enforceable in accordance with its terms, except as the
enforceability thereof may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity.
SECTION 3.2 No Conflict. To the best of the Purchaser's
knowledge, none of the execution and delivery of this Agreement, the
execution and delivery of the Note, and the consummation of the
transactions contemplated hereby and thereby will violate, conflict with or
constitute a default under (a) the terms of the Trust, (b) any agreement,
indenture or other instrument to which the Trust is a party or by which the
Trust or its assets may be bound or subject or (c) any law, regulation,
order, arbitration award, judgment or decree applicable to the Trust.
ARTICLE IV
RESTRICTIONS ON DISPOSITION OF THE COMMON SHARES
SECTION 4.1 Restricted Securities. The Purchaser acknowledges
that the Purchaser is acquiring the Acquired Shares pursuant to a
transaction exempt from registration under the 1933 Act. The Purchaser
represents, warrants and agrees that all Acquired Shares acquired by the
Purchaser pursuant to this Agreement are being acquired for investment
without any intention of making a distribution thereof, or of making any
sale or other disposition thereof which would be in violation of the 1933
Act or any applicable state securities law, and that the Purchaser will not
dispose of any of the Acquired Shares, except that the Trustee may, from
time to time, convey a portion of the Acquired Shares pursuant to the terms
of the Trust Agreement.
SECTION 4.2 Legend. Until such time as the Acquired Shares are
registered pursuant to the provisions of the 1933 Act, any certificate or
certificates representing the Acquired Shares delivered pursuant to Section
1.3 will bear a legend in substantially the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may
not be sold, transferred or otherwise disposed of unless they
have first been registered under such Act or unless an exemption
from registration is available."
The Seller may place stop transfer orders against the registration of
transfer of any share evidenced by such a certificate or certificates until
such time as the requirements of the foregoing are satisfied.
ARTICLE V
COVENANTS OF SELLER
The Seller agrees that:
SECTION 5.1 Financial Statements, Reports and Documents.
Subsequent to the Closing, and for as long as any of the Acquired Shares
are held by the Trust (unless the Trustee shall otherwise consent in
writing), the Seller shall deliver to the Trustee each of the following:
(a) Annual Statements. As soon as available and in any
event within one hundred twenty (120) days after the close of each fiscal
year of the Seller, copies of the consolidated balance sheet of the Seller
and its subsidiaries as of the close of such fiscal year and the
consolidated statement of operations, consolidated statement of changes in
stockholders' equity and consolidated statement of cash flow of the Seller
and its subsidiaries for such fiscal year, in each case setting forth in
comparative form the figures for the preceding fiscal year, all in
reasonable detail and accompanied by an opinion thereon of Xxxxxx Xxxxxxxx
LLP, or of other independent public accountants of recognized national
standing, to the effect that such financial statements have been prepared
in accordance with generally accepted accounting principles and that the
examination of such accountants in connection with such financial
statements has been made in accordance with generally accepted auditing
standards and, accordingly, include such tests of the accounting records
and such other auditing procedures as were considered necessary in the
circumstances;
(b) SEC and Other Reports. Promptly upon their becoming
available, one copy of each financial statement, report, notice or proxy
statement sent by the Seller to stockholders generally and of each regular
or periodic report, registration statement or prospectus (other than any
registration statement on Form S-8 and its related prospectus) filed by the
Seller with the SEC or any successor agency; and
SECTION 5.2 Registration; Listing. As soon as practicable
after the Closing, the Seller shall use commercially reasonable efforts to
cause the Acquired Shares to be listed on the New York Stock Exchange, Inc.
The Seller shall take all actions necessary or appropriate, at its own
expense, to ensure that prior to any disposition of Acquired Shares by the
Trustee in accordance with the Trust Agreement, a registration statement
has been filed with the SEC (and remains effective) with respect to the
Acquired Shares being so disposed. The Seller shall also use its
commercially reasonable efforts to register or qualify such Acquired Shares
under the securities blue sky laws of such jurisdictions within the United
States as the Trustee may reasonably request, within seventy-five (75) days
of such request; provided, however, that the Seller shall not be required
to consent to general service of process for all purposes in any
jurisdiction where it is not then qualified.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Expenses. The Seller shall pay all of its expenses,
and it shall pay the Purchaser's expenses, in connection with the
authorization, preparation, execution and performance of this Agreement,
including without limitation the reasonable fees and expenses of the
Trustee, its agents, representatives, counsel, financial advisors and
consultants. The provisions of this Section 6.1 shall survive the failure
to occur of the Closing.
SECTION 6.2 Notices. All notices, requests, or other
communications required or permitted to be delivered hereunder shall be in
writing, delivered by registered or certified mail, return receipt
requested, as follows:
(a) To the Seller:
AMP Incorporated
X.X. Xxx 0000 Mailstop 176-40
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer
(b) To the Purchaser:
Wachovia Bank, N.A.
000 Xxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx
Attention: Xxxxxxxx X. Xxxx
Executive Services
NC31013
Any party hereto may from time to time, by written notice given as
aforesaid, designate any other address to which notices, requests or other
communications addressed to it shall be sent.
SECTION 6.3 Specific Performance. The parties hereto
acknowledge that damages would be an inadequate remedy for any breach of
the provisions of this Agreement and agree that the obligations of the
parties hereunder shall be specifically enforceable, and neither party will
take any action to impede the other from seeking to enforce such rights of
specific performance.
SECTION 6.4 Successors and Assigns; Integration; Assignment.
This Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective legal
representatives, successors and assigns. This Agreement (a) constitutes,
together with the Note, the Trust Agreement and any other written
agreements between the Purchaser and the Seller executed and delivered on
the date hereof, the entire agreement between the parties hereto and
supersedes all other prior agreements and understandings, both written and
oral, among the parties, with respect to the subject matter hereof, (b)
shall not confer upon any person other than the parties hereto any rights
or remedies hereunder and (c) shall not be assignable by operation of law
or otherwise, except that the Trustee may assign all its rights hereunder
to any corporation or other institution exercising trust powers in
connection with any such institution assuming the duties of a trustee under
the Trust.
SECTION 6.5 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to its conflicts of law doctrine.
SECTION 6.6 Further Assurances. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable to consummate
and make effective the transactions contemplated by this Agreement.
SECTION 6.7 Amendment and Waiver. No amendment or waiver of any
provision of this Agreement or consent to departure therefrom shall be
effective unless in writing and signed by the Purchaser and the Seller.
SECTION 6.8 Counterparts. This Agreement may be executed in any
number of counterparts with the same effect as if the signatures thereto
were upon one instrument.
SECTION 6.9 Certain Limitations. The execution, delivery and
performance by the Trustee of this Agreement have been, and will be,
effected by the Trustee, solely in its capacity as Trustee under the terms
of the Trust and not in its individual or corporate capacity. Nothing in
this Agreement shall be interpreted to increase, decrease or modify in any
manner any liability of the Trustee to the Seller or to any trustee,
representative or other claimant by right of the Seller resulting from the
Trustee's performance of its duties under the constituent instruments of
the Trust.
SECTION 6.10 Incorporation. The terms and conditions of the
Trust Agreement relating to the nature of the responsibilities of the
Trustee and the indemnification of the Trustee by the Seller are
incorporated herein by reference and made applicable to this Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement on the date and year first above written.
AMP INCORPORATED
By: /s/ Xxxxxx Xxxx
_________________________________
Name: Xxxxxx Xxxx
Title: Chairman and Chief Executive Officer
WACHOVIA BANK, N.A., solely in its
capacity as trustee under the
Trust Agreement
By: /s/ Xxx X. Xxxx
_______________________________
Name: Xxx X. Xxxx
Title: Senior Vice President
APPENDIX I
TRUST NOTE
Wachovia Bank, N.A., AS TRUSTEE
$979,687,500.00 October __, 1998
FOR VALUE RECEIVED, the undersigned, Wachovia Bank, N.A., solely
in its capacity as trustee (the "Trustee"), under the Benefit Trust
Agreement dated September 28, 1998 (the "Trust Agreement") between the
Trustee and AMP Incorporated (the "Company"), hereby unconditionally
promises to pay to the order of the Company the principal amount of
$979,687,500.00 (the "Original Principal Amount"), with interest (computed
on the basis of the actual number of days elapsed over a year of 365 days)
on the unpaid principal balance at the rate of 5.39% per annum from and
including the date hereof, until the principal hereof shall be paid in
full.
This Note is issued by the Trustee pursuant to the Stock Purchase
Agreement, dated September 28, 1998, between the Company and the Trustee
(the "Stock Purchase Agreement") as payment for the Acquired Shares, as
defined in the Stock Purchase Agreement, and is the Note referred to in
Section 2.1(a) of the Trust Agreement. This Note is entitled to the
benefits, and shall be subject to the applicable provisions, of the Stock
Purchase Agreement and the Trust Agreement, including, but not limited to,
the provisions of Section 2.2 of the Trust Agreement. The Trustee is
executing this Note solely in its capacity as trustee under the Trust
Agreement. The Trustee shall have no liability or obligation of any kind
in its individual capacity to the Company or its successors as a result of
the execution or issuance of this Note.
The unpaid principal balance and accrued and unpaid interest
hereunder shall be due and payable in accordance with the following
schedule, if not sooner paid:
o accrued and unpaid interest shall be due and payable on each
payment date for the payment of a quarterly cash dividend by the
Company, but only to the extent of cash dividends paid on
Acquired Shares and other shares of Common Stock (as defined in
the Trust Agreement) held in the Trust (as defined in the Trust
Agreement) on the record date for the payment of such dividend;
and
o 5% of the Original Principal Amount plus accrued and unpaid
interest, shall be due and payable on or before October __, of
each of the years 1999 through and including 2007;
o 55% of the Original Principal Amount plus accrued and unpaid
interest, shall be due and payable on or before October __, 2008.
The Trustee shall have the right to prepay principal or interest owed by
the Trustee under this Note in whole or in part at any time without
penalty. To the extent of any such prepayment of principal, principal
amounts due under the foregoing schedule shall be reduced in the reverse
order of their maturity. Upon termination of the Trust, the unpaid
principal balance and accrued and unpaid interest hereunder shall become
due and payable in full. If any payment of principal or interest owed by
the Trustee under this Note becomes due and payable on a day other than a
business day in the Commonwealth of Pennsylvania, the maturity thereof
shall be extended to the next succeeding business day.
The Trustee hereby waives presentment, demand, protest and notice
of dishonor. The Trustee shall be entitled to exercise any and all voting,
conversion and other rights pertaining to the Acquired Shares or any part
thereof in the manner prescribed in the Trust Agreement.
The Trustee shall be obligated to make the payments indicated as
aforesaid only from (i) cash dividends or other earnings received by the
Trustee in respect of the Acquired Shares and other shares of Common Stock
held in the Trust, which dividends or other earnings have not previously
been applied for such purpose, (ii) cash contributions made (or deemed to
have been made under the Trust Agreement) for such purpose by the Company
or any corporation affiliated therewith and earnings thereon, and (iii) any
proceeds realized from the sale, exchange or other disposition of the
Acquired Shares upon termination of the Trust.
Any failure by the Company to exercise any right, remedy or
recourse shall not be deemed a waiver or release of same, such waiver or
release or any other modification of any such right, remedy or recourse to
be effective only if set forth in a written document executed by the
Company and then only to the extent specifically recited therein. A waiver
or release with reference to one event shall not be construed as
continuing, as a bar to or as a waiver or release of any subsequent event.
The acceptance by the Company of payment hereunder that is less than
payment in full of all amounts due and payable at the time of such payment
shall not constitute a waiver of the right to exercise any right, remedy or
recourse at that time or at any subsequent time, or nullify any prior
exercise of any such right, remedy or recourse without the express written
consent of the Company.
Subject to the provisions hereof, and to the extent not
inconsistent with applicable law, in the event of default hereunder, the
Trustee agrees to pay from Trust assets all reasonable costs of collection
hereof when billed therefore, including reasonable attorneys' fees, whether
or not any action shall be instituted to enforce this Note.
All of the terms of this Note shall be binding upon the Trustee
and the Trustee's successors and assigns (including without limitation any
successor trustee under the Trust Agreement), and all references herein to
the "Trustee" shall refer to such successors and assigns.
This Note shall be construed in accordance with and shall be
governed by the law of the Commonwealth of Pennsylvania without regard to
its conflicts of law doctrine.
Wachovia Bank, N.A.,
solely in its
capacity as trustee
under the Trust Agreement
By:_________________________
Name:
Title:
