EXHIBIT 10.1


 


AMPHENOL CORPORATION




$600,000,000


 


4.75% Senior Notes due 2014




UNDERWRITING AGREEMENT


 


October 29, 2009


 


BANC OF AMERICA SECURITIES LLC

J.P. MORGAN SECURITIES INC.


 

















 


Underwriting
Agreement


 


October 29, 2009


 


BANC OF AMERICA SECURITIES LLC

J.P. MORGAN SECURITIES INC.


As Representatives of the several Underwriters named in Schedule A
hereto


c/o BANC OF AMERICA SECURITIES LLC

Bank of America Tower


One Bryant Park

New York, New York 10036


 


and


 


J.P.
MORGAN SECURITIES INC.


270
Park Avenue


New York, New York 10017


 


Ladies and Gentlemen:


 


Introductory. 
Amphenol
Corporation, a Delaware corporation (the “Company”), proposes to issue
and sell to the several underwriters named in Schedule A (the “Underwriters”),
acting severally and not jointly, the respective amounts set forth in such Schedule
A of $600,000,000 aggregate principal amount of the Company’s 4.75% Senior
Notes due 2014 (the “Notes”). 
Banc of America Securities LLC and J.P. Morgan Securities
Inc. have agreed to
act as representatives of the several Underwriters (in such capacity, the “Representatives”)
in connection with the offering and sale of the Notes.


 


The Notes will be
issued pursuant to an indenture, to be dated as of November 5, 2009 (the “Base
Indenture”), between the Company and The Bank of New York Mellon, as
trustee (the “Trustee”).  Certain
terms of the Notes will be established pursuant to an Officers’ Certificate
delivered pursuant to the Base Indenture (together with the Base Indenture, the
“Indenture”).  The Notes will be issued
in book-entry form in the name of Cede & Co., as nominee of The
Depository Trust Company (the “Depositary”), pursuant to a Letter of
Representations, to be dated on or before the Closing Date (as defined in Section 2(b) below)
(the “DTC Agreement”), among the Company, the Trustee and the
Depositary.


 


The Company has
prepared and filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (File No. 333-162722), which
contains a base prospectus (the “Base Prospectus”), to be used in
connection with the public offering and sale of debt securities, including the
Notes, of the Company under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively, the “Securities 


 


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Act”), and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act.  Such registration statement, including the
financial statements, exhibits and schedules thereto, in the form in which it
became effective under the Securities Act, including any required information
deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B
under the Securities Act, is called the “Registration Statement.” The
term “Prospectus” shall mean the final prospectus supplement relating to
the Notes, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) under
the Securities Act after the date and time that this Agreement is executed (the
“Execution Time”) by the parties hereto. 
The term “Preliminary Prospectus” shall mean the preliminary
prospectus supplement relating to the Notes, together with the Base Prospectus,
that is first filed with the Commission pursuant to Rule 424(b). 
Any reference herein to the Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents that are or are deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act prior to 4:14 p.m.,
New York City time, on October 29, 2009 (the “Initial Sale Time”).  All references in this Agreement to the
Registration Statement, the Preliminary Prospectus, the Prospectus or any
amendments or supplements to any of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System (“EDGAR”).


 


All references in
this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” (or other references of like
import) in the Registration Statement, the Prospectus or the Preliminary
Prospectus shall be deemed to mean and include all such financial statements
and schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, prior to the Initial Sale Time; and all
references in this Agreement to amendments or supplements to the Registration
Statement, the Prospectus or the Preliminary Prospectus shall be deemed to
include any document filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”), which is or is deemed to be
incorporated by reference in the Registration Statement, the Prospectus or the
Preliminary Prospectus, as the case may be, after the Initial Sale Time.


 


The Company hereby confirms its agreements with the
Underwriters as follows:


 


SECTION 1.  Representations and Warranties of the Company


 


The Company hereby represents, warrants and covenants
to each Underwriter as of the date hereof, as of the Initial Sale Time and as
of the Closing Date (in each case, a “Representation Date”), as follows:


 


a)                                      Compliance with Registration
Requirements.  The Company meets the requirements for
use of Form S-3 under the Securities Act. 
The Registration Statement has become effective under the Securities Act
and no stop order suspending the effectiveness of the Registration Statement
has been issued under the Securities Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, are
contemplated or threatened by the Commission, and any request on the part of
the Commission 


 


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for additional information has been complied
with.  In addition, the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended, and the rules and
regulations promulgated thereunder (the “Trust Indenture Act”).


 


At the respective
times the Registration Statement and any post-effective amendments thereto
became effective and at each Representation Date, the Registration Statement
and any amendments thereto (i) complied and will comply in all material
respects with the requirements of the Securities Act and the Trust Indenture
Act, and (ii) did not and will not contain any 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.  At the date of the Prospectus and at the
Closing Date, neither the Prospectus nor any amendments or supplements thereto
included or will include an untrue statement of a material fact or omitted or
will 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.  Notwithstanding the
foregoing, the representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or any
post-effective amendment or the Prospectus or any amendments or supplements
thereto (i) made in reliance upon and in conformity with information
furnished to the Company in writing by any 
of the Underwriters through the Representatives expressly for use
therein, it being understood and agreed that the only such information
furnished by any Underwriter through the Representatives consists of the
information described as such in Section 8 hereof and (ii) in the
case of the Registration Statement or any post-effective amendment, that part
of the Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee.


 


The Preliminary Prospectus and the Prospectus, at the
time each was filed with the Commission, complied in all material respects with
the Securities Act, and the Preliminary Prospectus and the Prospectus delivered
to the Underwriters for use in connection with the offering of the Notes will,
at the time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.


 


b)                                     Disclosure
Package.  The term “Disclosure Package” shall mean (i) the
Preliminary Prospectus dated October 29, 2009, (ii) the issuer free
writing prospectuses as defined in Rule 433 under the Securities Act, if
any, identified in Annex I hereto and (iii) any other free writing
prospectus that the parties hereto shall hereafter expressly agree in writing
to treat as part of the Disclosure Package. 
As of the Initial Sale Time, the Disclosure Package did not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. 
The preceding sentence does not apply to statements in or omissions from
the Disclosure Package based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter through the Representatives consists
of the information described as such in Section 8(b) hereof.


 


c)                                      Incorporated Documents. 
The documents incorporated or deemed to be incorporated by reference in
the Registration Statement, the Preliminary Prospectus and the Prospectus (i) at
the time they were or hereafter are filed with the Commission, complied or will



 


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comply in all material respects with the requirements
of the Exchange Act and (ii) when read together with the other information
in the Disclosure Package, at the Initial Sale Time, and when read together
with the other information in the Prospectus, at the date of the Prospectus and
at the Closing Date, did not or will not include 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.


 


d)                                     Company is a Well-Known
Seasoned Issuer.  (i) At the time of filing the
Registration Statement, (ii) at the time of the most recent amendment
thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), (iii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under
the Securities Act) made any offer relating to the Notes in reliance on the
exemption of Rule 163 under the Securities Act, and (iv) as of the
Execution Time, the Company was and is a “well known seasoned issuer” as
defined in Rule 405 under the Securities Act.  The Registration Statement is an “automatic
shelf registration statement,” as defined in Rule 405 under the Securities
Act, that automatically became effective not more than three years prior to the
Execution Time; the Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) under the Securities Act objecting to use
of the automatic shelf registration statement form and the Company has not
otherwise ceased to be eligible to use the automatic shelf registration form.


 


e)                                      Company is not an
Ineligible Issuer.
(i) At the time of filing the Registration Statement and (ii) as of
the Execution Time (with such date being used as the determination date for
purposes of this clause (ii)), the Company was not and is not an Ineligible
Issuer (as defined in Rule 405 under the Securities Act), without taking
account of any determination by the Commission pursuant to Rule 405 under
the Securities Act that it is not necessary that the Company be considered an
Ineligible Issuer.


 


f)                                        Issuer Free Writing
Prospectuses.  Each “written communication” (as defined in Rule 405
under the Securities Act) that constitutes an offer to sell or solicitation of
an offer to buy the Notes, including the issuer free writing prospectuses
identified in Annex I hereto as constituting part of the Disclosure
Package and any electronic road show or other written communications (in each
case approved in writing in advance by the Representatives) (each such
communication by the Company or its agents and representatives, an “Issuer
Free Writing Prospectus”), as of its issue date and at all subsequent times through the
completion of the offering of Notes under this Agreement or until any earlier
date that the Company notified or notifies the Representatives as described in
the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the
Registration Statement, the Preliminary Prospectus or the Prospectus.  Any Issuer Free Writing Prospectus, when
taken together with the Preliminary Prospectus accompanying, or delivered prior
to delivery of, such Issuer Free Writing Prospectus, did not, and at the
Closing Date will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the of the circumstances under which they were made, not misleading.  If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development
as a result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the 


 


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Registration Statement, the
Preliminary Prospectus or the Prospectus, the Company has promptly notified or
will promptly notify the Representatives and has promptly amended or
supplemented or will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict.  The foregoing three sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon
and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information described
as such in Section 8(b) hereof.


 


g)                                     Distribution of Offering Material
by the Company.  The Company has not distributed and will
not distribute, prior to the later of the Closing Date and the completion of
the Underwriters’ distribution of the Notes, any offering material in
connection with the offering and sale of the Notes other than the Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus reviewed and
consented to by the Representatives and included in Annex I hereto or
the Registration Statement.


 


h)                                     No Applicable Registration or
Other Similar Rights.  There are no persons with registration or
other similar rights to have any equity or debt securities registered for sale
under the Registration Statement or included in the offering contemplated by
this Agreement, except for such rights as have been duly waived.


 


i)                                         The Underwriting Agreement.  This Agreement has been duly authorized, executed and
delivered by the Company.


 


j)                                         Authorization of the
Indenture.  The Indenture has been duly qualified under
the Trust Indenture Act and has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.


 


k)                                      Authorization of the Notes.  The Notes to be purchased by the Underwriters from the
Company are in the form contemplated by the Indenture, have been duly
authorized for issuance and sale pursuant to this Agreement and the Indenture
by the Company and, at the Closing Date, will have been duly executed by the
Company and, when authenticated in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor, will constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by
general equitable principles, and will be entitled to the benefits of the
Indenture.


 


l)                                         Description of the
Notes and the Indenture.  The Notes and the Indenture
conform in all material respects to the descriptions thereof contained in the
Disclosure Package and the Prospectus.


 


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m)                                   Accuracy of Statements
in Prospectus.  The statements in each
of the Preliminary Prospectus and the Prospectus under the captions “Description
of the Notes,” “Description of the Senior Debt Securities” and “Material United
States Federal Income Tax Consequences For Non-U.S. Holders,” in each case
insofar as such statements constitute a summary of the legal matters, documents
or proceedings referred to therein, fairly present and summarize, in all
material respects, the matters referred to therein.


 


n)                                     No Material Adverse Change. 
Except as otherwise disclosed in the Disclosure Package, subsequent to
the respective dates as of which information is given in the Disclosure
Package, (i) neither the Company nor any of its subsidiaries has sustained
any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, except as would not,
individually or in the aggregate, result in a Material Adverse Change (defined
below) and (ii) there has been no material adverse change, or any
development that would be expected to result in a material adverse change, in
the financial condition, business, properties, results of operations or prospects,
whether or not arising from transactions in the ordinary course of business, of
the Company and its subsidiaries, considered as one entity (any such change is
called a “Material Adverse Change”).


 


o)                                     Independent Accountants.  Deloitte & Touche LLP, who have expressed
their opinion with respect to the Company’s audited financial statements for
the fiscal years ended December 31, 2006, 2007 and 2008 incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the
Prospectus, are independent public accountants with respect to the Company as
required by the Securities Act and the Exchange Act and are an independent
registered public accounting firm with the Public Company Accounting Oversight
Board.


 


p)                                     Preparation of the Financial
Statements.  The financial statements together with
the related notes thereto incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus present fairly in all
material respects the consolidated financial position of the Company and its
subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified.  Such financial statements comply as to form
with the accounting requirements of the Securities Act and have been prepared
in conformity with generally accepted accounting principles as applied in the
United States (“GAAP”) applied on a consistent basis throughout the
periods involved, except as may be expressly stated in the related notes
thereto.  No other financial statements
are required to be included in the Registration Statement.  The selected financial data and the summary
financial information included in the Preliminary Prospectus and the Prospectus
present fairly in all material respects the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement, the Preliminary Prospectus
and the Prospectus.


 


q)                                     Incorporation and Good Standing
of the Company and its Significant Subsidiaries.  Each of the Company and its “significant subsidiaries”
(as defined in Rule 1-02(10) of Regulation S-X, the “Significant
Subsidiaries”) has been duly incorporated or formed and is validly existing
in good standing under the laws of the jurisdiction of its incorporation or
formation and has power and authority to own or lease, as the case may be, and
operate its properties and to conduct its business as described in the
Disclosure Package and the Prospectus 


 


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and, in the case of the Company, to enter into and
perform its obligations under this Agreement. 
Each of the Company and each Significant Subsidiary is duly qualified as
a foreign corporation or business to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except for
such jurisdictions where the failure to so qualify or to be in good standing
would not, individually or in the aggregate, result in a Material Adverse
Change.  All of the issued and
outstanding shares of capital stock of each Significant Subsidiary have been
duly authorized and validly issued, are fully paid and nonassessable and,
except for shares necessary to qualify directors or to maintain any minimum
number of shareholders required by law, are owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim.  The
Company does not have any subsidiary not listed on Exhibit 21.1 to the
Company’s Annual Report on Form 10-K for the year ended December 31,
2008, which is required to be so listed.


 


r)                                        Capitalization and Other Capital
Stock Matters.  The authorized, issued and outstanding
capital stock of the Company is as set forth in the Disclosure Package and the
Prospectus under the caption “Capitalization” (other than for subsequent
issuances, if any, pursuant to employee benefit plans described in the
Disclosure Package and the Prospectus or upon exercise of outstanding options
described in the Disclosure Package and the Prospectus, as the case may be, and
except for repurchases in connection with open market or repurchase plans).


 


s)                                      Non-Contravention of Existing
Instruments; No Further Authorizations or Approvals Required.  Except as otherwise disclosed in the Disclosure
Package and the Prospectus, none of the Company or any of its subsidiaries is (i) in
violation or in default (or, with the giving of notice or lapse of time or
both, would be in default) (“Default”) under its articles of
incorporation, charter or by-laws, (ii) in Default under any indenture,
mortgage, loan or credit agreement, deed of trust, note, contract, franchise,
lease or other agreement, obligation, condition, covenant or instrument to
which the Company or any of its Significant Subsidiaries is a party or by which
it or any of them may be bound or to which any of the property or assets of the
Company or any of its Significant Subsidiaries is subject (each, an “Existing
Instrument”) or (iii) in violation of any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of its or their
properties, as applicable, except, with respect to clauses (ii) and (iii) only,
for such Defaults or violations as would not, individually or in the aggregate,
result in a Material Adverse Change.  The
Company’s execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby, by the Disclosure Package
and by the Prospectus (A) have been duly authorized by all necessary
corporate action and will not result in any Default under the articles of
incorporation, charter or by-laws of the Company or any Significant Subsidiary,
(B) will not conflict with or constitute a breach of, or Default or a Debt
Repayment Triggering Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its Significant Subsidiaries pursuant to, or require the
consent of any other party to, any Existing Instrument, and (C) will not
result in any violation of any statute, law, rule, regulation, judgment, order
or decree applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having  jurisdiction over the
Company 


 


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or any of its subsidiaries or any of its or their
properties.  No consent, approval,
authorization or other order of, or registration or filing with, any court or
other governmental or regulatory authority or agency is required for the
Company’s execution, delivery and performance of this Agreement or consummation
of the transactions contemplated hereby, by the Disclosure Package or by the
Prospectus, except such as have been obtained or made by the Company and are in
full force and effect under the Securities Act, applicable state securities or
blue sky laws and from the Financial Industry Regulatory Authority (the “FINRA”).  As used herein, a “Debt Repayment Triggering
Event” means any event or condition which gives, or with the giving of
notice or lapse of time or both would give, the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder’s
behalf) issued by the Company, the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or any of
its Significant Subsidiaries.


 


t)                                        No Material Actions or
Proceedings.  Except as disclosed in the Prospectus and
the Disclosure Package, there are no legal or governmental actions, suits or
proceedings pending or, to the Company’s knowledge, threatened (i) against
or affecting the Company or any of its subsidiaries, (ii) which has as the
subject thereof any officer or director of, or property owned or leased by, the
Company or any of its subsidiaries or (iii) relating to environmental or
discrimination matters related to the Company or its subsidiaries, where any
such action, suit or proceeding, if determined adversely, would, individually
or in the aggregate, result in a Material Adverse Change or adversely affect
the consummation of the transactions contemplated by this Agreement.


 


u)                                     Labor Matters.  No material collective labor dispute with the
employees of the Company or any of its subsidiaries exists that would,
individually or in the aggregate, result in a Material Adverse Change.


 


v)                                     Intellectual Property
Rights.  Except as would not reasonably be expected to result
in a Material Adverse Change or as set forth in the Disclosure Package and the
Prospectus, to the Company’s knowledge, the Company or its subsidiaries own or
possess a valid right to use all patents, trademarks, service marks, trade
names, copyrights, patentable inventions, trade secret, know-how and other
intellectual property (collectively, the “Intellectual Property”) used
by the Company or its subsidiaries in, and material to, the conduct of the
Company’s or its subsidiaries’ business as now conducted or as proposed in the
Disclosure Package and the Prospectus to be conducted.  Except as set forth in the Disclosure Package
and the Prospectus, to the Company’s knowledge, there is no material
infringement by third parties of any of the Company’s Intellectual Property,
and there are no legal or governmental actions, suits, proceedings or claims
pending or, to the Company’s knowledge, threatened, against the Company or its
subsidiaries (i) challenging the Company’s or its subsidiaries’ rights in
or to any Intellectual Property, (ii) challenging the validity or scope of
any Intellectual Property owned by the Company or its subsidiaries or (iii) alleging
that the operation of the Company’s or its subsidiaries’ businesses as now
conducted infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary rights of a third party, except where any
such action, suit, proceeding or claim would not, individually or in the
aggregate, result in a Material Adverse Change, and the Company is unaware of
any facts which would form a reasonable basis for any such claim.


 


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w)                                   All Necessary Permits, etc.  Except as otherwise disclosed in the Disclosure
Package and the Prospectus, the Company and its subsidiaries possess such valid
and current certificates, authorizations, permits, licenses, approvals,
consents and other authorizations (collectively, “Approvals”) issued by
the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, except for any such Approvals
which, singly or in the aggregate, would result in a Material Adverse Change,
and none of the Company or any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization, permit, license, approval, consent
or other authorization which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Change.


 


x)                                       Title to Properties.  Except as otherwise disclosed in the Disclosure
Package and the Prospectus, the Company and each of its subsidiaries has good
and marketable title to all the properties and assets reflected as owned in the
financial statements referred to in Section 1(p) above (or elsewhere
in the Disclosure Package and the Prospectus), in each case free and clear of
any security interests, mortgages, liens, encumbrances, equities, claims and
other defects, except such as do not materially and adversely affect the value
of such property and do not materially interfere with the use made or proposed
to be made of such property by the Company or such subsidiary.  The real property, improvements, equipment
and personal property held under lease by the Company or any subsidiary are
held under valid and enforceable leases, with such exceptions as are not
material and do not materially interfere with the use made or proposed to be
made of such real property, improvements, equipment or personal property by the
Company or such subsidiary.


 


y)                                     Tax Law Compliance.  The Company and its subsidiaries have filed all
necessary federal, state, local and foreign income and franchise tax returns in
a timely manner and have paid all taxes required to be paid by any of them and,
if due and payable, any related or similar assessment, fine or penalty levied
against any of them, except for any taxes, assessments, fines or penalties as
may be being contested in good faith and by appropriate proceedings, except
where a default to make such filings or payments would not result in a Material
Adverse Change.  The Company has made
appropriate provisions in the applicable financial statements referred to in Section 1(p) above
in respect of all federal, state, local and foreign income and franchise taxes
for all current or prior periods as to which the tax liability of the Company
or any of its subsidiaries has not been finally determined.


 


z)                                       Company Not an Investment
Company.  The Company has been advised of the rules and
requirements under the Investment Company Act of 1940, as amended (the “Investment
Company Act”).  The Company is not,
and after receipt of payment for the Notes and the application of the proceeds
thereof as contemplated under the caption “Use of Proceeds” in the Preliminary
Prospectus and the Prospectus will not be, required to register as an “investment
company” within the meaning of the Investment Company Act.


 


aa)                                No Price Stabilization or
Manipulation.  The Company has not taken and will not
take, directly or indirectly, any action designed to or that would be
reasonably expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Notes; provided, however, that no such representation is made with respect to
any action undertaken by the Underwriters.


 


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bb)                              Related Party Transactions.  There are no business relationships between or among
the Company or any subsidiary, on one hand, and any director, officer, member
or stockholder of the Company or any affiliate of the Company, on the other
hand, that is required by the Securities Act to be described in the Preliminary
Prospectus or the Prospectus that have not been described as required.


 


cc)                                No Unlawful Contributions or
Other Payments.  None of the Company, any of its
subsidiaries or, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the FCPA,
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA, and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have
conducted their businesses in compliance with the FCPA and have instituted and
maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.  “FCPA” means Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder.


 


dd)                              No Conflict with Money
Laundering Laws.  The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance in all
material respects with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all applicable jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”) and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.


 


ee)                                No Conflict with OFAC
Laws.  None of the Company or any of its subsidiaries nor,
to the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the
Company will not directly or indirectly use the proceeds of
the offering, or lend, contribute or otherwise make available such proceeds, to
any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.


 


ff)                                    Compliance with Environmental
Laws.  Except as otherwise disclosed in the Disclosure
Package and the Prospectus, (i) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign law,
regulation, order, permit or other requirement relating to pollution or
protection of human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including without limitation, laws and regulations relating to
emissions, discharges, releases or 


 


10

















 


threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum and
petroleum products (collectively, “Materials of Environmental Concern”),
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Materials of Environment
Concern (collectively, “Environmental Laws”), which violation includes,
but is not limited to, noncompliance with any permits or other governmental
authorizations required for the operation of the business of the Company or its
subsidiaries under applicable Environmental Laws, or noncompliance with the
terms and conditions thereof, nor has the Company or any of its subsidiaries
received any written communication, whether from a governmental authority,
citizens group, employee or otherwise, that alleges that the Company or any of
its subsidiaries is in violation of any Environmental Law, except as would not,
individually or in the aggregate, result in Material Adverse Change; (ii) there
is no claim, action or cause of action filed with a court or governmental
authority, no investigation with respect to which the Company has received
written notice, and no written notice by any person or entity alleging
potential liability for investigatory costs, cleanup costs, governmental
responses costs, natural resources damages, property damages, personal
injuries, attorneys’ fees or penalties arising out of, based on or resulting
from the presence, or release into the environment, of any Material of
Environmental Concern at any location owned, leased or operated by the Company
or any of its subsidiaries, now or in the past (collectively, “Environmental
Claims”), pending or, to the Company’s knowledge, threatened against the
Company or any of its subsidiaries or any person or entity whose liability for
any Environmental Claim the Company or any of its subsidiaries has retained or
assumed either contractually or by operation of law, except as would not,
individually or in the aggregate, result in a Material Adverse Change; (iii) to
the Company’s knowledge, there are no past, present or anticipated future
actions, activities, circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge, presence or disposal of
any Material of Environmental Concern, that reasonably could result in a
violation of any Environmental Law, require expenditures to be incurred pursuant
to Environmental Law, or form the basis of a potential Environmental Claim
against the Company or any of its subsidiaries or against any person or entity
whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law, except as would not, individually or in the aggregate, result in a
Material Adverse Change; and (iv) neither the Company nor any of its
subsidiaries is subject to any pending or threatened proceeding under
Environmental Law to which a governmental authority is a party and which is
reasonably likely to result in monetary sanctions of $100,000 or more.


 


gg)                              Sarbanes-Oxley
Compliance.  There is and has been no failure in any
material respect on the part of the Company and any of the Company’s directors
or officers, in their capacities as such, to comply with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Sarbanes-Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to certifications.


 


hh)                              Company’s
Accounting System.  The Company and
its subsidiaries maintain effective internal control over financial reporting,
as such term is defined in Rule 13a-15(f) under the Exchange Act.


 


ii)                                      Internal Controls and
Procedures.  Each of the Company and its subsidiaries
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that 


 


11

















 


(A) transactions are executed in accordance with
management’s general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (C) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.


 


jj)                                      No Material Weakness in
Internal Controls.  Except as disclosed in the Disclosure
Package and the Prospectus or in any document incorporated by reference
therein, since the end of the Company’s most recent audited fiscal year, there
has been (i) no material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and (ii) no change in the
Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting.


 


Any certificate
signed by an officer of the Company and delivered to the Representatives or to
counsel for the Underwriters shall be deemed to be a representation and
warranty by the Company to each Underwriter as to the matters set forth
therein.


 


SECTION 2.  Purchase, Sale and
Delivery of the Notes.


 


a)              The Notes.  The Company agrees to issue and sell to the several
Underwriters, severally and not jointly, all of the Notes upon the terms herein
set forth.  On the basis of the
representations, warranties and agreements herein contained, and upon the terms
but subject to the conditions herein set forth, each Underwriter agrees,
severally and not jointly, to purchase from the Company the respective
principal amount of Notes set forth opposite such Underwriter’s name on Schedule
A at a purchase price of 99.213% of the principal amount of the Notes,
payable on the Closing Date.


 


b)             The Closing Date.  Delivery of the Notes in book-entry form to be
purchased by the Underwriters and payment therefor shall be made at the offices
of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New
York 10017 (or such other place as may be agreed to by the Company and the
Representatives) at 9:00 a.m., New York City time, on November 5,
2009, or such other time and date as the Underwriters and the Company shall
mutually agree (the time and date of such closing are called the “Closing
Date”).


 


c)              Public Offering of the Notes.  The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the
Disclosure Package and the Prospectus, their respective portions of the Notes
as soon after the Execution Time as the Representatives, in their sole judgment,
have determined is advisable and practicable.


 


d)             Payment for the Notes.  Payment for the Notes shall be made at the Closing
Date by wire transfer of immediately available funds to the order of the
Company.


 


It is understood
that the Representatives have been authorized, for their own accounts and for
the accounts of the several Underwriters, to accept delivery of and receipt
for, and make payment of the purchase price for, the Notes that the
Underwriters have agreed to purchase. 
The Representatives may (but shall not be obligated to) make payment for
any Notes to be purchased by any Underwriter whose funds shall not have been
received by the Representatives by the


 


12
















 


Closing Date for the account of such Underwriter, but any such payment
shall not relieve such Underwriter from any of its obligations under this
Agreement.


 


e)              Delivery of the Notes.  The Notes to be purchased by each Underwriter
hereunder will be represented by one or more definitive global Notes that will
be deposited by or on behalf of the Company with the Depositary or its
designated custodian.  The Company shall
deliver, or cause to be delivered, the Notes at the Closing Date, against the
irrevocable release of a wire transfer of immediately available funds for the
amount of the purchase price therefor to an account specified by the Company to
the Representatives, by causing the Depositary to credit the Notes to the
Representatives for the accounts of the several Underwriters as the
Representatives shall have requested at least two full business days prior to
the Closing Date.  Copies of the
certificates for the global Notes shall be made available for inspection on the
business day preceding the Closing Date at a location in New York City, as the
Representatives may designate.  Time
shall be of the essence, and delivery at the time and place specified in this
Agreement is a further condition to the obligations of the Underwriters.


 


SECTION 3.  Covenants of the Company.


 


The Company
covenants and agrees with each Underwriter as follows:


 


a)              Compliance with
Securities Regulations and Commission Requests. 
The
Company, subject to Section 3(b), will comply with the requirements of Rule 430B
under the Securities Act, and will promptly notify the Representatives, and
confirm the notice in writing, of (i) the effectiveness during the
Prospectus Delivery Period (as defined below) of any post-effective amendment
to the Registration Statement or the filing of any supplement or amendment to
the Preliminary Prospectus or the Prospectus, (ii) the receipt of any
comments from the Commission during the Prospectus Delivery Period, (iii) any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Preliminary Prospectus or the Prospectus or
for additional information and (iv) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of the Preliminary Prospectus or the
Prospectus, or of the suspension of the qualification of the Notes for offering
or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. 
The Company will promptly effect the filings necessary pursuant to Rule 424
under the Securities Act and will take such steps as it deems necessary to
ascertain promptly whether the Preliminary Prospectus and the Prospectus
transmitted for filing under Rule 424 under the Securities Act was
received for filing by the Commission and, in the event that it was not, it
will promptly file such document.  The
Company will use its reasonable best efforts to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.


 


b)             Filing of Amendments.  During such
period beginning on the date of this Agreement and ending on the later of the
Closing Date or such date as, in the opinion of counsel for the Underwriters, the
Prospectus is no longer required by law to be delivered in connection with
sales of the Notes by an Underwriter or dealer, including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the
Securities Act (the “Prospectus Delivery Period”), the Company will give
the Representatives notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b) of



 


13

















 


the Securities Act), or any amendment, supplement or
revision to the Disclosure Package or the Prospectus, whether pursuant to the
Securities Act, the Exchange Act or otherwise, will furnish the Representatives
with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and (prior to the Closing Date)
will not file or use any such document to which the Representatives or counsel
for the Underwriters shall reasonably object.


 


c)              Delivery of Registration Statements.  The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies
of the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters.  The Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.


 


d)             Delivery of Prospectuses.  The Company will deliver to each Underwriter, without
charge, as many copies of the Preliminary Prospectus as such Underwriter may
reasonably request, and the Company hereby consents to the use of such copies
for purposes permitted by the Securities Act. 
The Company will furnish to each Underwriter, without charge, during the
Prospectus Delivery Period, such number of copies of the Prospectus as such
Underwriter may reasonably request.  The
Preliminary Prospectus and the Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.


 


e)              Continued Compliance with
Securities Laws.  The Company will comply with the Securities
Act and the Exchange Act so as to permit the completion of the distribution of
the Notes as contemplated in this Agreement and in the Registration Statement,
the Disclosure Package and the Prospectus. 
If at any time during the Prospectus Delivery Period, any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion
of counsel for the Underwriters or for the Company, to amend the Registration
Statement in order that the Registration Statement 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 or to
amend or supplement the Disclosure Package or the Prospectus in order that the
Disclosure Package or the Prospectus, as the case may be, will not include 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
existing at the Initial Sale Time or at the time it is delivered or conveyed to
a purchaser, not misleading, or if it shall be necessary, in the opinion of
either such counsel, at any such time to amend the Registration Statement or
amend or supplement the Disclosure Package or the Prospectus in order to comply
with the requirements of any law, the Company will (i) notify the
Representatives of any such event, development or condition and (ii) promptly
prepare and file with the Commission, subject to Section 3(b) hereof,
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement, the Disclosure Package or the
Prospectus comply with such law, and 


 


14

















 


the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.


 


f)                Blue Sky Compliance.  The Company shall cooperate with the Representatives
and counsel for the Underwriters to qualify or register the Notes for sale
under (or obtain exemptions from the application of) the state securities or
blue sky laws of those jurisdictions reasonably designated by the
Representatives, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as required for the
distribution of the Notes, except that, the Company shall not be required to
qualify to transact business or to take any action that would subject it to
general service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign business.  The Company will advise the Representatives
promptly of the suspension of the qualification or registration of (or any such
exemption relating to) the Notes for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any such
purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its best
efforts to obtain the withdrawal thereof at the earliest possible moment.


 


g)             Use of Proceeds.  The Company shall apply the net proceeds from the sale
of the Notes sold by it in the manner described under the caption “Use of
Proceeds” in the Preliminary Prospectus and the Prospectus.


 


h)             Depositary.  The Company will cooperate with the Underwriters and
use its best efforts to permit the Notes to be eligible for clearance and
settlement through the facilities of the Depositary.


 


i)                 Periodic Reporting
Obligations.  During the Prospectus Delivery Period,
the Company shall file, on a timely basis, with the Commission and the New York
Stock Exchange Inc. all reports and documents required to be filed therewith
under the Exchange Act.


 


j)                 Agreement Not to Offer or Sell
Additional Securities.  During the period commencing on the date
hereof and ending on the Closing Date, the Company will not, without the prior
written consent of the Representatives (which consent may be withheld at the
sole discretion of the Representatives), directly or indirectly, sell, offer, contract
or grant any option to sell, pledge, transfer or establish an open “put
equivalent position” within the meaning of Rule 16a-1(h) under the
Exchange Act, or otherwise dispose of or transfer, or announce the offering of,
or file any registration statement under the Securities Act in respect of, any
debt securities of the Company substantially similar to the Notes or securities
exchangeable for or convertible into debt securities substantially similar to
the Notes (other than as contemplated by this Agreement with respect to the
Notes).


 


k)              Final Term Sheet. 
The Company will prepare a final term sheet containing only a
description of the Notes, in a form approved by the Underwriters and attached
as Exhibit B hereto, and will file such term sheet pursuant to Rule 433(d) under
the Securities Act within the time required by such rule (such term sheet,
the “Final Term Sheet”).  Any such
Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this
Agreement.


 


15

















 


l)                 Permitted Free Writing
Prospectuses.  The Company represents that it has not made,
and agrees that, unless it obtains the prior written consent of the
Representatives, it will not make, any offer relating to the Notes that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405 under the Securities
Act) required to be filed by the Company with the Commission or retained by the
Company under Rule 433 under the Securities Act; provided that the prior
written consent of the Representatives shall be deemed to have been given in
respect of any Issuer Free Writing Prospectuses included in Annex I
hereto.  Any such free writing prospectus
consented to or deemed to be consented to by the Representatives is hereinafter
referred to as a “Permitted Free Writing Prospectus.”  The Company agrees that (i) it has
treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and
will comply, as the case may be, with the requirements of Rules 164 and
433 under the Securities Act applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending
and record keeping.  The Company consents
to the use by any Underwriter of a free writing prospectus that (a) is not
an “issuer free writing prospectus” as defined in Rule 433 under the
Securities Act, and (b) contains only (i) information describing the
preliminary terms of the Notes or their offering, (ii) information
permitted by Rule 134 under the Securities Act or (iii) information
that describes the final terms of the Notes or their offering and that is
included in the Final Term Sheet of the Company contemplated in Section 3(k).


 


m)           Notice of Inability to Use
Automatic Shelf Registration Statement Form.  If at any
time during the Prospectus Delivery Period, the Company receives from the
Commission a notice pursuant to Rule 401(g)(2) under the Securities
Act or otherwise ceases to be eligible to use the automatic shelf registration
statement form, the Company will (i) promptly notify the Representatives, (ii) promptly
file a new registration statement or post-effective amendment on the proper
form relating to the Notes, in a form satisfactory to the Representatives, (iii) use
its best efforts to cause such registration statement of post-effective
amendment to be declared effective and (iv) promptly notify the
Representatives of such effectiveness. 
The Company will take all other action necessary or appropriate to
permit the public offering and sale of the Notes to continue as contemplated in
the registration statement that was the subject of the Rule 401(g)(2) notice
or for which the Company has otherwise become ineligible.  References herein to the Registration
Statement shall include such new registration statement or post-effective
amendment, as the case may be.


 


n)             Filing Fees. 
The Company agrees to pay the required Commission filing fees relating to
the Notes within the time required by and in accordance with Rule 456(b)(1) and
457(r) under the Securities Act.


 


o)             Compliance with
Sarbanes-Oxley Act.  The Company will comply with all applicable
securities and other laws, rules and regulations, including, without
limitation, the Sarbanes-Oxley Act, and use its reasonable best efforts to
cause the Company’s directors and officers, in their capacities as such, to
comply with such laws, rules and regulations, including, without
limitation, the provisions of the Sarbanes-Oxley Act.


 


p)             No Manipulation of Price.  The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to 


 


16

















 


constitute, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any securities of the Company to
facilitate the sale or resale of the Notes.


 


The
Representatives, on behalf of the several Underwriters, may, in their sole
discretion, waive in writing the performance by the Company of any one or more
of the foregoing covenants or extend the time for their performance.


 


SECTION 4.  Payment of Expenses.  The Company agrees to pay all
costs, fees and expenses incurred in connection with the performance of its
obligations hereunder and in connection with the transactions contemplated
hereby, including without limitation (i) all expenses incident to the
issuance and delivery of the Notes (including all printing and engraving
costs), (ii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Notes, (iii) all fees and
expenses of the Company’s counsel, independent public or certified public
accountants and other advisors to the Company, (iv) all costs and expenses
incurred in connection with the preparation, printing, filing, shipping and
distribution of the Registration Statement (including financial statements,
exhibits, schedules, consents and certificates of experts), each Issuer Free
Writing Prospectus, the Preliminary Prospectus and the Prospectus, and all
amendments and supplements thereto, and this Agreement, the Indenture, the DTC
Agreement and the Notes, (v) all filing fees, reasonable attorneys’ fees
and expenses incurred by the Company or the Underwriters in connection with
qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Notes for offer and sale under the
state securities or blue sky laws, and, if requested by the Representatives,
preparing a “Blue Sky Survey” or memorandum, and any supplements thereto,
advising the Underwriters of such qualifications, registrations and exemptions,
(vi) the filing fees incident to, and the reasonable fees and disbursements
of counsel to the Underwriters in connection with, the review, if any, by the
FINRA of the terms of the sale of the Notes, (vii) the fees and expenses
of the Trustee, including the reasonable fees and disbursements of counsel for
the Trustee in connection with the Indenture and the Notes, (viii) any
fees payable in connection with the rating of the Notes with the ratings
agencies, (ix) all fees and expenses (including reasonable fees and
expenses of counsel) of the Company in connection with approval of the Notes by
the Depositary for “book-entry” transfer, (x) all other fees, costs and
expenses referred to in Item 14 of Part II of the Registration Statement
and (xi) all other fees, costs and expenses incurred in connection with the
performance of its obligations hereunder for which provision is not otherwise
made in this Section 4.  Except as
provided in clauses (v) and (vi) of this Section 4 and Sections
6, 8 and 9 hereof, the Underwriters shall pay their own expenses, including the
fees and disbursements of their counsel.


 


SECTION 5.  Conditions of the
Obligations of the Underwriters.  The
obligations of the several Underwriters to purchase and pay for the Notes as
provided herein on the Closing Date shall be subject to the accuracy of the
representations and warranties on the part of the Company set forth in Section 1
hereof as of the date hereof, as of the Initial Sale Time, and as of the
Closing Date as though then made and to the timely performance by the Company
of its covenants and other obligations hereunder, and to each of the following
additional conditions:


 


a)              Effectiveness of Registration
Statement.  The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
Securities Act and no proceedings for 


 


17

















 


that purpose shall have been instituted or be pending
or threatened by the Commission, any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters and the Company shall not have
received from the Commission any notice pursuant to Rule 401(g)(2) under
the Securities Act objecting to use of the automatic shelf registration
statement form.  The Preliminary
Prospectus and the Prospectus shall have been filed with the Commission in
accordance with Rule 424(b) under the Securities Act (or any required
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A under
the Securities Act).


 


b)             Accountants’ Comfort Letter.  On the date hereof, the Representatives shall have
received from Deloitte & Touche LLP, independent registered public
accountants for the Company, a letter dated the date hereof addressed to the
Underwriters, in form and substance satisfactory to the Representatives with
respect to the audited and unaudited financial statements and certain financial
information contained in the Registration Statement, the Preliminary Prospectus
and the Prospectus.


 


c)              Bring-down Comfort Letter. 
On the Closing Date, the Representatives shall have received from
Deloitte & Touche LLP, independent registered public accountants for
the Company, a letter dated such date, in form and substance satisfactory to
the Representatives, to the effect that they reaffirm the statements made in
the letter furnished by them pursuant to subsection (b) of this Section 5,
except that the specified date referred to therein for the carrying out of
procedures shall be no more than three business days prior to the Closing Date.


 


d)             No Objection.  If the Registration Statement and/or the offering of
the Notes has been filed with the FINRA for review, the FINRA shall not have
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.


 


e)              No Material Adverse Change or Ratings Agency
Change.  For the period from and after the date of this
Agreement and prior to the Closing Date:


 


(i)  in the
reasonable judgment of the Representatives there shall not have occurred any
Material Adverse Change;


 


(ii)  there
shall not have been any change or decrease specified in the letter or letters
referred to in paragraph (b) of this Section 5 which is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Notes as contemplated by the Prospectus; and


 


(iii)  there
shall not have occurred any downgrading, nor shall any notice have been given
of any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating accorded
any securities of the Company or any of its subsidiaries by any “nationally
recognized statistical rating organization” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act.


 


f)                Opinion of Counsel for the
Company.  On the Closing Date, the Representatives shall have
received the favorable opinions of (i) Pillsbury Winthrop Shaw Pittman
LLP, counsel 


 


18

















 


for the Company, dated as of the Closing Date, the
form of which is attached as Exhibit A-I hereto and (ii) Edward
C. Wetmore, Esq., General Counsel of the Company, dated as of the Closing
Date, the form of which is attached as Exhibit A-II hereto.


 


g)             Opinion of Counsel for the
Underwriters.  On the Closing Date, the Representatives
shall have received the favorable opinion of Simpson Thacher &
Bartlett LLP, counsel for the Underwriters, dated as of the Closing Date, with
respect to such matters as may be reasonably requested by the Underwriters.


 


h)             Officers’ Certificate.  On the Closing Date, the Representatives shall have
received a written certificate executed by the Chairman of the Board of
Directors of the Company or the Chief Executive Officer or a Senior Vice
President of the Company and the Chief Financial Officer or Chief Accounting
Officer of the Company, dated as of the Closing Date, to the effect that:


 


(i)  the
Company has received no stop order suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been
instituted or threatened by the Commission;


 


(ii)  the
Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under
the Securities Act objecting to use of the automatic shelf registration
statement form;


 


(iii)  the
representations, warranties and covenants of the Company set forth in Section 1
of this Agreement are true and correct with the same force and effect as though
expressly made on and as of the Closing Date; and


 


(iv)  the
Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date.


 


i)                 Additional Documents.  On or before the Closing Date, the Representatives and
counsel for the Underwriters shall have received such information, documents
and opinions as they may reasonably require for the purposes of enabling them
to pass upon the issuance and sale of the Notes as contemplated herein, or in
order to evidence the accuracy of any of the representations and warranties, or
the satisfaction of any of the conditions or agreements, herein contained.


 


If any condition
specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to
the Company at any time on or prior to the Closing Date, which termination
shall be without liability on the part of any party to any other party, except
that Sections 4, 6, 8, 9 and 17 shall at all times be effective and shall
survive such termination.


 


SECTION 6.  Reimbursement of
Underwriters’ Expenses.  If
this Agreement is terminated by the Representatives pursuant to Section 5
or 11, or if the sale to the Underwriters of the Notes on the Closing Date is
not consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
the


 


19
















 


Company agrees to reimburse the Representatives and
the other Underwriters (or such Underwriters as have terminated this Agreement
with respect to themselves), severally, upon demand for all out-of-pocket
expenses that shall have been reasonably incurred by the Representatives and
the Underwriters in connection with the proposed purchase and the offering and
sale of the Notes, including but not limited to fees and disbursements of
counsel, printing expenses, travel expenses, postage, facsimile and telephone
charges.


 


SECTION 7.  Effectiveness
of this Agreement.  This
Agreement shall not become effective until the execution of this Agreement by
the parties hereto.


 


SECTION 8.  Indemnification.


 


(a)  Indemnification
of the Underwriters.  The Company agrees to indemnify and
hold harmless each Underwriter, its directors, officers, employees and agents,
and each person, if any, who controls any Underwriter within the meaning of the
Securities Act and the Exchange Act against any loss, claim, damage, liability
or expense, as incurred, to which such Underwriter or such director, officer,
employee, agent or controlling person may become subject, under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, or
at common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company), insofar as
such loss, claim, damage, liability or expense (or actions in respect thereof
as contemplated below) arises out of or is based (i) upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading; or (ii) upon any
untrue statement or alleged untrue statement of a material fact contained in
any Issuer Free Writing Prospectus, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and to reimburse each Underwriter and each such director,
officer, employee, agent and controlling person for any and all expenses
(including the (subject to Section 8(c) hereof) reasonable fees and
disbursements of counsel chosen by the Representatives) as such expenses are
reasonably incurred by such Underwriter or such director, officer, employee,
agent or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however,
that the foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent, arising out
of or based upon any untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement, any
Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto). The indemnity agreement set
forth in this Section 8(a) shall be in addition to any liabilities
that the Company may otherwise have.


 


(b)  Indemnification of the Company and its Directors and Officers.  Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act, against any 


 


20

















 


loss, claim, damage, liability or expense, as
incurred, to which the Company or any such director, officer or controlling
person may become subject, under the Securities Act, the Exchange Act, or other
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with
the written consent of such Underwriter), insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment thereto, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading; or (ii) upon any untrue statement or alleged untrue
statement of a material fact contained in any Issuer Free Writing Prospectus,
the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or
the Prospectus (or any amendment or supplement thereto), in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein; and to reimburse
the Company or any such director, officer or controlling person for any legal
and other expense reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action.  The Company hereby
acknowledges that the only information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or
the Prospectus (or any amendment or supplement thereto) are the statements set
forth in the last paragraph of the cover page of, and in the third and
seventh paragraphs under the caption “Underwriting” in, the Preliminary
Prospectus and the Prospectus.  The
indemnity agreement set forth in this Section 8(b) shall be in
addition to any liabilities that each Underwriter may otherwise have.


 


(c)  Notifications and Other Indemnification
Procedures. 
Promptly after receipt
by an indemnified party under this Section 8 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to
be made against an indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof, but the omission so
to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party for contribution or otherwise than under
the indemnity agreement contained in this Section 8 or to the extent it is
not prejudiced as a proximate result of such failure.  In case any such action is brought against
any indemnified party and such indemnified party seeks or intends to seek
indemnity from an indemnifying party, the indemnifying party will be entitled
to participate in, and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice delivered to
the indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however,
such indemnified party shall have the right to employ its own counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party,
unless: (i) the employment of such counsel has been specifically
authorized in writing by the indemnifying party; (ii) the indemnifying
party has failed promptly to assume the defense and employ counsel


 


21

















 


reasonably satisfactory to the indemnified party; or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party and the indemnifying party or any affiliate of the
indemnifying party, and such indemnified party shall have reasonably concluded
that either (x) there may be one or more legal defenses available to it
which are different from or additional to those available to the indemnifying
party or such affiliate of the indemnifying party or (y) a conflict may
exist between such indemnified party and the indemnifying party or such
affiliate of the indemnifying party (it being understood, however, that the
indemnifying party 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 a
single firm of local counsel) for all such indemnified parties, which firm
shall be designated in writing by the Representatives and that all such
reasonable fees and expenses shall be reimbursed as they are incurred).  Upon receipt
of notice from the indemnifying party to such indemnified party of such
indemnifying party’s election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence,
in which case the reasonable fees and expenses of counsel shall be at the
expense of the indemnifying party.


 


(d)  Settlements.  The indemnifying party under this Section 8 shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party against any
loss, claim, damage, liability or expense by reason of such settlement or
judgment.  No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent (i) includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such action, suit
or proceeding 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 any indemnified party.


 


SECTION 9.  Contribution.  If the indemnification provided
for in Section 8 is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party, as incurred, as a result of any losses, claims,
damages, liabilities or expenses referred to therein (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 Notes pursuant to this Agreement 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, on the
one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations.  The relative benefits
received by the Company, on the one 


 


22

















 


hand, and the Underwriters, on the other hand, in
connection with the offering of the Notes pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the Notes pursuant to this Agreement (before deducting
expenses) received by the Company, and the total underwriting discount received
by the Underwriters, in each case as set forth on the front cover page of
the Prospectus bear to the aggregate initial public offering price of the Notes
as set forth on such cover.  The relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, 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.


 


The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8(c), any reasonable legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.


 


The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 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 this Section 9.


 


Notwithstanding the provisions of this Section 9, no Underwriter shall
be required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Notes underwritten by it
and distributed to the public.  No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities 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 9 are several, and not joint, in proportion to
their respective underwriting commitments as set forth opposite their names in Schedule
A.  For purposes of this Section 9,
each director, officer, employee and agent of an Underwriter and each person,
if any, who controls an Underwriter within the meaning of the Securities Act
and the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company with the meaning of the Securities Act and the Exchange Act shall have
the same rights to contribution as the Company.


 


SECTION 10.  Default of One or More of the Several Underwriters.  If, on the Closing Date, any one
or more of the several Underwriters shall fail or refuse to purchase Notes that
it or they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Notes, which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase does not exceed 10% of the aggregate
principal amount of the Notes to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportion to the aggregate
principal amounts of such Notes set forth opposite their respective names on Schedule
A bears to the aggregate
principal amount of such Notes set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as may be specified by the Representatives 


 


23

















 


with the consent of the non-defaulting Underwriters,
to purchase such Notes which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date. If, on the Closing Date, any
one or more of the Underwriters shall fail or refuse to purchase such Notes and
the aggregate principal amount of such Notes with respect to which such default
occurs exceeds 10% of the aggregate principal amount of Notes to be purchased
on such date, and arrangements satisfactory to the Representatives and the
Company for the purchase of such Notes are not made within 48 hours after such
default, this Agreement shall terminate without liability of any party to any
other party except that the provisions of Sections 4, 6, 8, 9 and 17 shall at
all times be effective and shall survive such termination.  In any such case, either the Representatives
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, to
the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary
Prospectus or the Prospectus or any other documents or arrangements may be
effected.


 


As used in this Agreement, the term “Underwriter” shall be deemed to
include any person substituted for a defaulting Underwriter under this Section 10.  Any action taken under this Section 10
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.


 


SECTION 11.  Termination of this Agreement.  Prior
to the Closing Date, this Agreement may be terminated by the Representatives by
notice given to the Company if at any time (i) trading or quotation in any
of the Company’s securities shall have been suspended or limited by the
Commission or the New York Stock Exchange Inc., or trading in securities
generally on the New York Stock Exchange Inc. shall have been suspended or
limited, or minimum or maximum prices shall have been generally established on
the New York Stock Exchange Inc. by the Commission or the FINRA; (ii) a
general banking moratorium shall have been declared by any of federal or New
York authorities; (iii) there shall have occurred any outbreak or
escalation of national or international hostilities or any crisis or calamity
involving the United States, or any change in the United States or
international financial markets, as in the judgment of the Representatives is
material and adverse and makes it impracticable or inadvisable to market the
Notes in the manner and on the terms described in the Disclosure Package or the
Prospectus or to enforce contracts for the sale of securities; (iv) in the
judgment of the Representatives there shall have occurred any Material Adverse
Change; or (v) there shall have occurred a material disruption in
commercial banking or securities settlement or clearance services. Any
termination pursuant to this Section 11 shall be without liability of any party to any other party except as
provided in Sections 4 and 6 hereof, and provided further that Sections 4,
6, 8, 9 and 17 shall survive such termination and remain in full force and
effect.


 


SECTION 12.  No
Fiduciary Duty.  The Company acknowledges and agrees
that:  (i) the purchase and sale of
the Notes pursuant to this Agreement, including the determination of the public
offering price of the Notes and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, and the Company is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to
such transaction each Underwriter is and has been acting solely as a principal
and is not the financial advisor, agent or fiduciary of the Company or its
affiliates, stockholders, creditors or employees 


 


24

















 


or any other party; (iii) no Underwriter has assumed or will
assume an advisory, agency or fiduciary responsibility in favor of the Company
or its affiliates, stockholders, creditors or employees or any other party with
respect to any of the transactions contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company or its affiliates, stockholders, creditors or employees or
any other party on other matters) and no Underwriter has any obligation to the
Company or its affiliates, stockholders, creditors or employees or any other
party with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement; (iv) the several Underwriters and
their respective affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Company or its affiliates,
stockholders, creditors or employees or any other party and that the several
Underwriters have no obligation to disclose any of such interests by virtue of
any advisory, agency or fiduciary relationship; and (v) the Underwriters
have not provided any legal, accounting, regulatory or tax advice with respect
to the offering contemplated hereby and the Company has consulted its own
legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.


 


This Agreement
supersedes all prior agreements and understandings (whether written or oral)
between the Company and the several Underwriters with respect to the subject
matter hereof.  The Company hereby waives
and releases, to the fullest extent permitted by law, any claims that the
Company may have against the several Underwriters with respect to any breach or
alleged breach of agency or fiduciary duty.


 


SECTION 13.  Representations and Indemnities to Survive Delivery.  The respective indemnities,
agreements, representations, warranties and other statements of the Company, of
its officers and of the several Underwriters set forth in or made pursuant to
this Agreement (i) will remain operative and in full force and effect,
regardless of any (A) investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the officers or employees of
any Underwriter, or any person controlling the Underwriter, the Company, the
officers or employees of the Company or any person controlling the Company, as
the case may be, or (B) acceptance of the Notes and payment for them
hereunder and (ii) will survive delivery of and payment for the Notes sold
hereunder and any termination of this Agreement.


 


SECTION 14.  Notices.  All
communications hereunder shall be in writing and shall be mailed, hand
delivered or telecopied and confirmed to the parties hereto as follows:


 


If to the Representatives:


 


Banc of America Securities LLC


Bank of America Tower


One Bryant Park


New York, New York 10036


Facsimile:  (212) 901-7881


Attention:  High Grade Debt Capital Markets Transaction
Management/Legal


 


and


 


25

















 


J.P. Morgan Securities Inc.


270 Park Avenue


New York, New York 10017


Facsimile:  (212) 834-6081


Attention:  Investment Grade Syndicate Desk


 


with a copy to:


 


Simpson Thacher & Bartlett
LLP


425 Lexington Avenue


New York, New York 10017


Facsimile:  (212) 455-2502


Attention:                    John B. Tehan, Esq.


Andrew R. Keller, Esq.


 


If to the Company:


 


Amphenol Corporation


358 Hall Avenue


Wallingford, Connecticut 06492


Facsimile: 
(203) 265-8827


Attention: 
Edward C. Wetmore, Esq.


 


with a copy to:


 


Pillsbury Winthrop Shaw Pittman LLP


1540 Broadway


New York, New York 10036


Facsimile: 
(212) 298-9931


Attention: 
Ronald A. Fleming, Esq.


 


Any party hereto may change the address for receipt of communications by
giving written notice to the others.


 


SECTION 15.  Successors.  This
Agreement will inure to the benefit of and be binding upon the parties hereto,
including any substitute Underwriters pursuant to Section 10 hereof, and
to the benefit of the directors, officers, employees, agents and controlling
persons referred to in Sections 8 and 9, and in each case their respective
successors, and no other person will have any right or obligation
hereunder.  The term “successors” shall
not include any purchaser of the Notes as such from any of the Underwriters
merely by reason of such purchase.


 


SECTION 16.  Partial Unenforceability.  The
invalidity or unenforceability of any Section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof.  If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.


 


26

















 


SECTION 17.  Governing Law Provisions.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.


 


SECTION 18.  General Provisions.  This
Agreement may be executed in two or more counterparts, each one of which shall
be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument.  This
Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to
benefit.  The Section headings
herein are for the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.


 


Each of the parties hereto acknowledges that it is a sophisticated business
person who was adequately represented by counsel during negotiations regarding
the provisions hereof, including, without limitation, the indemnification
provisions of Section 8 and the contribution provisions of Section 9,
and is fully informed regarding said provisions.  Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the
risks in light of the ability of the parties to investigate the Company, its
affairs and its business in order to assure that adequate disclosure has been
made in the Registration Statement, the Disclosure Package and the Prospectus
(and any amendments and supplements thereto), as required by the Securities Act
and the Exchange Act.


 


27
















 


If the
foregoing is in accordance with your understanding of our agreement, kindly
sign and return to the Company the enclosed copies hereof, whereupon this
instrument, along with all counterparts hereof, shall become a binding
agreement in accordance with its terms.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  AMPHENOL
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Diana G. Reardon

  
	
   

  	
   

  	
  Name:
  Diana G. Reardon

  
	
   

  	
   

  	
  Title:
  Senior Vice President and Chief Financial Officer

  



 

















 


The foregoing Underwriting Agreement is hereby confirmed and accepted by
the Representatives as of the date first above written.


 


	
  BANC
  OF AMERICA SECURITIES LLC

  	
   

  
	
  J.P.
  MORGAN SECURITIES INC.

  	
   

  
	
  Acting as Representatives of the several Underwriters named in the
  attached Schedule A.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Banc
  of America Securities LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Laurie Campbell

  	
   

  
	
   

  	
  Name:
  Laurie Campbell

  	
   

  
	
   

  	
  Title:
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  J.P.
  Morgan Securities Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Stephen L. Sheiner

  	
   

  
	
   

  	
  Name: Stephen L. Sheiner

  	
   

  
	
   

  	
  Title: Vice President

  	
   

  



 

















 


SCHEDULE A


 


	
  Underwriters

  	
   

  	
  Aggregate

  Principal

  Amount of

  Notes to be

  Purchased

  	
   

  
	
  Banc
  of America Securities LLC

  	
   

  	
  $

  	
  168,000,000

  	
   

  
	
  J.P.
  Morgan Securities Inc.

  	
   

  	
  168,000,000

  	
   

  
	
  Deutsche
  Bank Securities Inc.

  	
   

  	
  114,000,000

  	
   

  
	
  Wells
  Fargo Securities, LLC

  	
   

  	
  114,000,000

  	
   

  
	
  Mitsubishi UFJ Securities
  (USA), Inc.

  	
   

  	
  9,000,000

  	
   

  
	
  Mizuho
  Securities USA Inc.

  	
   

  	
  9,000,000

  	
   

  
	
  RBS
  Securities Inc.

  	
   

  	
  9,000,000

  	
   

  
	
  TD
  Securities (USA) LLC

  	
   

  	
  9,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  600,000,000

  	
   

  



 


 


Schedule A-1

















 


ANNEX I


 


Issuer Free Writing Prospectuses


 


Final Term Sheet dated October 29, 2009


 


 


Annex I-1
















 


EXHIBIT A-I


 


[Form of Opinion of Pillsbury Winthrop Shaw
Pittman LLP]


 


1.               The Company has been duly incorporated
and is validly existing as a corporation in good standing under the Delaware
General Corporation Law and has the corporate power and authority to own or
lease, as the case may be, and operate, its properties, to conduct its business
as described in the Disclosure Package and the Prospectus and to enter into and
perform its obligations under the Underwriting Agreement.


 


2.               The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.


 


3.               The Indenture has been duly qualified
under the Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution and
delivery thereof by the Trustee) constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles (regardless
of whether enforcement is considered in a proceeding in equity or at law).


 


4.               The Notes are in the form contemplated by
the Indenture, have been duly authorized, executed and issued by the Company
and, when authenticated in the manner provided for in the Indenture and
delivered against payment of the purchase price as specified in the
Underwriting Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles (regardless
of whether enforcement is considered in a proceeding in equity or at law), and
will be entitled to the benefits of the Indenture.


 


5.               The Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the Disclosure
Package and the Prospectus.


 


6.               The Registration Statement is an “automatic
shelf registration statement,” as defined in Rule 405 under the Securities
Act, that automatically became effective not more than three years prior to the
Execution Time; the Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) under the Securities Act objecting to use
of the automatic shelf registration statement form and the Company has not
otherwise ceased to be eligible to use the automatic shelf registration form.


 


7.               The Registration Statement, including
without limitation the Rule 430B Information, the Prospectus, excluding
the documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective
or issue dates (including without limitation each deemed effective date with respect
to the Underwriters pursuant to 


 


A-I-1

















 


Rule 430B(f)(2) under
the Securities Act), other than (i) the financial statements and
supporting schedules included therein or omitted therefrom, and (ii) the
Trustee’s Statement of Eligibility on Form T-1 (the “Form T-1”),
as to which we need express no opinion, complied as to form in all material
respects with the requirements of the Securities Act.


 


8.               The statements set
forth in each of the Disclosure Package and the Prospectus (a) under the
captions “Description of the Notes” and “Description of the Senior Debt
Securities,” insofar as such statements purport to constitute summaries of the
terms of the Notes and the Indenture, and (b) under the caption “Material
United States Federal Income Tax Consequences For Non-U.S. Holders,” insofar as
such statements purport to constitute a summary of matters of United States
federal tax law and regulations or legal conclusions with respect thereto,
fairly present and summarize, in all material respects, the matters referred to
therein.


 


9.               There are no contracts or documents which
are required to be filed as exhibits to the Registration Statement which have
not been so filed as required.


 


10.         The Company’s execution, delivery and
performance of the Underwriting Agreement and consummation of the transactions
contemplated thereby, (i) have been duly authorized by all necessary
corporate action and will not result in any Default under the Amended and
Restated Certificate of Incorporation or By-Laws of the Company, (ii) will
not conflict with or constitute a breach of, or Default or a Debt Repayment
Triggering Event under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company pursuant to,
or require the consent of any other party to, any of the agreements set forth
on Schedule A hereto (each, an “Existing Instrument”), and (iii) will
not result in any violation of the federal law of the United States of America
or the law of the state of New York, that in our experience
is normally applicable to transactions of the type contemplated by the
Underwriting Agreement, or the Delaware General Corporation Law, but without
having made any investigation with respect to any other law, other than any
federal securities or state securities or “blue sky” laws or the antifraud laws
of any jurisdiction, as to which we express no opinion (the “Applicable Law”). 
No consent, approval, authorization or other order of, or registration
or filing with, any court or other governmental or regulatory authority or
agency under the Applicable Law is required for the Company’s execution,
delivery and performance of the Underwriting Agreement or consummation of the
transactions contemplated thereby, except such as have been obtained or made by
the Company.


 


11.         The Company is not, and after receipt of
payment for the Notes and the application of the proceeds thereof as
contemplated under the caption “Use of Proceeds” in the Preliminary Prospectus
and the Prospectus will not be, required to register as an “investment company”
within the meaning of the Investment Company Act.


 


Nothing has come to our
attention that would lead us to believe that (i) the Registration
Statement or any amendment thereto, including the information required under Rule 430B
under the Securities Act (except for (i) financial statements and the
related notes and schedules thereto and other financial, accounting or
statistical information included or incorporated by reference 


 


A-I-2

















 


therein or omitted
therefrom and (ii) the Form T-1, as to which we make no statement),
as of its original effective date and at each deemed effective date with
respect to the Underwriter pursuant to Rule 430B(f)(2) under the
Securities Act, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Disclosure Package (except for
financial statements and the related notes and schedules thereto and other
financial, accounting and statistical information included or incorporated by
reference therein or omitted therefrom, as to which we make no statement), as
of the Initial Sale Time, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (iii) the Prospectus or any amendment or supplement thereto
(except for financial statements and the related notes and schedules thereto
and other financial, accounting and statistical information included or
incorporated by reference therein or omitted therefrom, as to which we make no
statement), as of the date of the Prospectus, as of the date of any such
amended or supplemented prospectus or as of the date hereof, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.


 


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EXHIBIT A-II


 


[Form of Opinion of Edward C. Wetmore, Esq.]


 


1.               The Company is duly qualified to transact
business as a foreign corporation, and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such jurisdictions
where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse Change.


 


2.               Each of the Company’s significant
subsidiaries (as defined in Rule 1-02(10) of Regulation S-X, the “Significant
Subsidiaries”) has been duly incorporated or formed and is validly existing
as a corporation, limited liability company, partnership or other legal entity
in good standing under the laws of the jurisdiction of its incorporation or
formation, and each has corporate, limited liability company, partnership or
other power and authority to own or lease, as the case may be, and operate, its
properties and to conduct its business as described in the Disclosure Package
and the Prospectus


 


3.               Each Significant Subsidiary is duly
qualified to transact business as a foreign corporation, limited liability
company, partnership or other entity and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing would
not, individually or in the aggregate, result in a Material Adverse Change.


 


4.               To my knowledge, all of the issued and
outstanding shares of capital stock or other equity interests of each
Significant Subsidiary have been duly authorized and validly issued, are fully
paid and nonassessable and, except for shares necessary to qualify directors or
to maintain any minimum number of shareholders required by law, are owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim.


 


5.               The documents incorporated or deemed to
be incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus at the time they were filed with the Commission,
complied in all material respects with the requirements of the Exchange Act.


 


6.               To my knowledge and except as disclosed
in the Disclosure Package and the Prospectus, there are no legal or
governmental actions, suits or proceedings pending or threatened (i) against
or affecting the Company or any of its Significant Subsidiaries, (ii) which
has as the subject thereof any officer or director of, or property owned or
leased by, the Company or any of its Significant Subsidiaries or (iii) relating
to environmental or discrimination matters related to the Company or its
Significant Subsidiaries, where any such action, suit or proceeding, if
determined adversely against the Company, would, individually or in the
aggregate, result in a Material Adverse Change or adversely affect the
consummation of the transactions contemplated by the Underwriting Agreement.


 


A-II-1

















 


7.               There are no franchises, contracts or
documents which are required to be described in the Registration Statement, the
Disclosure Package, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits to the Registration Statement which have not
been so described and filed as required.


 


8.               Except as disclosed in the Disclosure
Package and the Prospectus, the Company and each Significant Subsidiary possess
such valid and current certificates, authorizations, permits, licenses,
approvals, consents and other authorizations (collectively, “Approvals”)
issued by the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct their respective businesses, except for any such
Approvals which, individually or in the aggregate, would result in a Material
Adverse Change, and none of the Company or any Significant Subsidiary has
received any notice of proceedings relating to the revocation or modification
of, or non-compliance with, any such certificate, authorization, permit,
license, approval, consent or other authorization which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Change.


 


9.               The Company’s execution, delivery and
performance of the Underwriting Agreement and consummation of the transactions
contemplated thereby (i) have been duly authorized by all necessary corporate
action and will not result in any Default under the articles of incorporation,
charter or by-laws of the Company or any Significant Subsidiary, and (ii)
will not conflict with or constitute a breach of, or Default or a Debt
Repayment Triggering Event under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of its Significant Subsidiaries pursuant to, or require the consent of any
other party to, any of the agreements set forth on Schedule A hereto (each, an
“Existing Instrument”), and (iii) will not result in any violation of
any statute, law, rule, regulation, judgment, order or decree applicable to the
Company or any of its Significant Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its Significant Subsidiaries or any of
its or their properties.  No consent,
approval, authorization or other order of, or registration or filing with, any
court or other governmental or regulatory authority or agency is required for
the Company’s execution, delivery and performance of the Underwriting Agreement
or consummation of the transactions contemplated thereby, except such as have
been obtained or made by the Company and are in full force and effect.


 


A-II-2

















 


EXHIBIT B


 


AMPHENOL CORPORATION


 


Form of Final Term Sheet


 


October 29, 2009


 


	
  Issuer:

  	
   

  	
  Amphenol Corporation

  
	
   

  	
   

  	
   

  
	
  Size:

  	
   

  	
  $600,000,000

  
	
   

  	
   

  	
   

  
	
  Security Type:

  	
   

  	
  Registered Senior Notes

  
	
   

  	
   

  	
   

  
	
  Maturity:

  	
   

  	
  November 15, 2014

  
	
   

  	
   

  	
   

  
	
  Coupon (Interest Rate):

  	
   

  	
  4.75%

  
	
   

  	
   

  	
   

  
	
  Price to Public:

  	
   

  	
  99.813%

  
	
   

  	
   

  	
   

  
	
  Yield to Maturity:

  	
   

  	
  4.792%

  
	
   

  	
   

  	
   

  
	
  Spread to Benchmark
  Treasury:

  	
   

  	
  237.5 bps

  
	
   

  	
   

  	
   

  
	
  Benchmark Treasury:

  	
   

  	
  2.375% due
  September 30, 2014

  
	
   

  	
   

  	
   

  
	
  Benchmark Treasury
  Price and Yield:

  	
   

  	
  99-253⁄4 and 2.417%

  
	
   

  	
   

  	
   

  
	
  Interest Payment Dates:

  	
   

  	
  May 15th and
  November 15th commencing May 15, 2010

  
	
   

  	
   

  	
   

  
	
  Redemption Provision:

  	
   

  	
  Treasury Rate plus 35
  bps

  
	
   

  	
   

  	
   

  
	
  Settlement Date:

  	
   

  	
  November 5, 2009
  (T+5)

  
	
   

  	
   

  	
   

  
	
  CUSIP/ISIN:

  	
   

  	
  032095AA9/US032095AA98

  
	
   

  	
   

  	
   

  
	
  Ratings*:

  	
   

  	
  Baa3 (stable) / BBB-
  (stable)

  
	
   

  	
   

  	
   

  
	
  Joint Bookrunners:

  	
   

  	
  Banc of America
  Securities LLC, J.P. Morgan Securities Inc., Deutsche Bank Securities Inc., Wells Fargo Securities, LLC

  
	
   

  	
   

  	
   

  
	
  Co-Managers:

  	
   

  	
  Mitsubishi
  UFJ Securities (USA), Inc., Mizuho Securities USA Inc., RBS Securities
  Inc., TD Securities (USA) LLC

  



 


Pursuant
to the provisions of the amendment to Amphenol’s revolving credit facility
described under “Use of Proceeds” in the prospectus to which this Final Term
Sheet relates, the banks’ revolving credit commitment to the company will
be reduced from $1 billion to approximately $750 million as a result of
this offering.


 


B-1

















 






*Note:  A securities rating is not a recommendation
to buy, sell or hold securities and may be subject to revision or withdrawal at
any time.


 


The issuer has filed a
registration statement (including a prospectus) with the SEC for the offering
to which this communication relates. 
Before you invest, you should read the prospectus in that registration
statement and other documents the issuer has filed with the SEC for more
complete information about the issuer and this offering.  You may get these documents for free by
visiting EDGAR on the SEC Web site at www.sec.gov.  Alternatively, the issuer, any underwriter or
dealer participating in the offering will arrange to send you the prospectus if
you request it by calling toll-free or e-mailing Banc of America Securities LLC
at 1-800-294-1322 or dg.prospectus_distribution@bofasecurities.com or by
calling collect J.P. Morgan Securities Inc at 212-834-4533.


 


B-2