Exhibit 10.50


 


[FORM OF] MANAGEMENT
STOCKHOLDER’S AGREEMENT


 


This Management Stockholder’s Agreement (this “Agreement”) is entered
into as of [DATE] between Amphenol Corporation, a Delaware Corporation (the “Company”),
and [NAME] (the “Management Stockholder”) (the Company and the Management
Stockholder being hereinafter collectively referred to as the “Parties”).


 


Reference is made to the Agreement and Plan of Merger dated as of January 23,
1997, among NXS Acquisition Corp., a Delaware corporation (“Newco”), and the
Company entered into an Agreement and Plan of Merger (the “Merger Agreement”)
pursuant to which Newco was merged with and into the Company (the “Merger”).


 


This Agreement is one of several other agreements (“Other Management
Stockholders’ Agreements”) which have been, or which in the future will be,
entered into between the Company and other individuals who are or will be key
employees of the Company or one of its subsidiaries (collectively, the “Other
Management Stockholders”).


 


The Company has granted to the Management Stockholder an option or
options to purchase Common Stock (“Options”) at an exercise price of [$GRANT
PRICE] per share of Common Stock pursuant to the terms of the Amended 1997
Option Plan for Key Employees of Amphenol Corporation and Subsidiaries (the “Option
Plan”) and the “Non-Qualified Stock Option Agreement” attached hereto as
Exhibit A.


 


NOW THEREFORE, to implement the foregoing and in consideration of the
grant of Options and of the mutual agreements contained herein, the Parties
agree as follows:


 


1.                                       [Intentionally
omitted]


 


2.                                       Management
Stockholder’s Representations, Warranties and Agreements.


 


(a)                                  The
Management Stockholder agrees and acknowledges that he will not, directly or
indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of (any such act being referred to herein as a “transfer”) any shares
of the Common Stock issuable upon exercise of the Options (the “Option Stock”
or the “Stock”) unless such transfer complies with Section 3 of this
Agreement.  If the Management Stockholder
is an “affiliate” (as defined under Rule 405 of the rules and regulations
promulgated under the Act and as interpreted by the Board of Directors of the
Company) of the Company (an “Affiliate”), the Management Stockholder also
agrees and acknowledges that he will not transfer any shares of the Stock
unless (i) the transfer is pursuant to an effective registration statement
under the Securities Act of 1933, as amended, and the rules and regulations in
effect thereunder (the “Act”), and in compliance with applicable provisions of
state securities laws or (ii) (A) counsel for the Management Stockholder (which
counsel shall be reasonably acceptable to the Company) shall have furnished the
Company with an opinion, satisfactory in form and substance to the Company,
that no such registration is required because of the availability of an
exemption from registration under the Act and (B) if the Management Stockholder
is a citizen or resident of any country other than the United States, or the
Management Stockholder desires to effect any transfer in any such country,
counsel for the


 





















 


Management Stockholder (which counsel shall be reasonably satisfactory
to the Company) shall have furnished the Company with an opinion or other
advice reasonably satisfactory in form and substance to the Company to the
effect that such transfer will comply with the securities laws of such
jurisdiction.  Notwithstanding the
foregoing, the Company acknowledges and agrees that any of the following
transfers are deemed to be in compliance with the Act and this Agreement and no
opinion of counsel is required in connection therewith: (x) a transfer made
pursuant to Section 4, 5 or 6 hereof, (y) a transfer upon the death of the
Management Stockholder to his executors, administrators, testamentary trustees,
legatees or beneficiaries (the “Management Stockholder’s Estate”) or a transfer
to the executors, administrators, testamentary trustees, legatees or
beneficiaries of a person who has become a holder of Stock in accordance with
the terms of this Agreement, provided that it is expressly understood that any
such transferee shall be bound by the provisions of this Agreement and (z) a
transfer made after the Base Date in compliance with the federal securities
laws to a trust or custodianship the beneficiaries of which may include only
the Management Stockholder, his spouse or his lineal descendants (a “Management
Stockholder’s Trust”) or a transfer made after the third anniversary of the
Base Date to such a trust by a person who has become a holder of Stock in
accordance with the terms of this Agreement, provided that such transfer is
made expressly subject to this Agreement and that the transferee agrees in
writing to be bound by the terms and conditions hereof.


 


(b)                                 [NOT
APPLICABLE AFTER MAY 19, 2002] The certificate (or certificates) representing
the Stock shall bear a legend in substantially the following form:


 


“THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES
WITH THE PROVISIONS OF THE MANAGEMENT STOCKHOLDER’S AGREEMENT BETWEEN AMPHENOL
CORPORATION (“THE COMPANY”) AND THE MANAGEMENT STOCKHOLDER NAMED ON THE FACE
HEREOF (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY).”


 


(c)                                  [NOT
APPLICABLE AFTER MAY 19, 2002] The Management Stockholder acknowledges that he
has been advised that (i) the Option Stock may not be registered under the Act
and may not be transferred unless registered pursuant to an effective
Registration Statement under the Act or pursuant to a transaction that is
exempt from the registration requirements of such Act, (ii) a restrictive
legend in the form heretofore set forth shall be placed on the certificates
representing the Stock and (iii) a notation shall be made in the appropriate
records of the Company indicating that the Stock is subject to restrictions on
transfer and appropriate stop transfer restrictions will be issued to the
Company’s transfer agent with respect to the Stock.  If the Management Stockholder is an
Affiliate, the Management Stockholder also acknowledges that (1) the Stock must
be held indefinitely and the Management Stockholder must continue to bear the
economic risk of the investment in the Stock unless it is subsequently
registered under the Act or an exemption from such registration is available,
(2) when and if shares of the Stock may be disposed of without registration in
reliance on Rule 144 of the rules and regulations promulgated under the Act,
such disposition can be made only in limited amounts in accordance with the
terms and conditions of such Rule and (3) if the Rule 144 exemption is not
available, public sale without registration will require compliance with some
other exemption under the Act.


 





















 


(d)                                 [NOT
APPLICABLE AFTER MAY 19, 2002] If any shares of the Stock are to be disposed of
in accordance with Rule 144 under the Act or otherwise, the Management
Stockholder shall promptly notify the Company of such intended disposition and
shall deliver to the Company at or prior to the time of such disposition such
documentation as the Company may reasonably request in connection with such
sale and, in the case of a disposition pursuant to Rule 144, shall deliver to
the Company an executed copy of any notice on Form 144 required to be filed
with the Securities and Exchange Commission (the “SEC”).


 


(e)                                  The
Management Stockholder agrees that, if any shares of the capital stock of the
Company are offered to the public pursuant to an effective registration
statement under the Act (other than registration of securities issued under an
employee plan), the Management Stockholder will not effect any public sale or
distribution of any shares of the Stock not covered by such registration
statement from the time of the receipt of a notice from the Company that the
Company has filed or imminently intends to file such registration statement to,
or within 180 days after, the effective date of such registration statement,
unless otherwise agreed to in writing by the Company.


 


(f)                                    The
Management Stockholder represents and warrants that (i) with respect to the
Options, he has received and reviewed the document(s) comprising the Prospectus
(the “Prospectus”) relating to Option Stock, and the documents referred to
therein, certain of which documents set forth the rights, preferences and
restrictions relating to the Stock and (ii) he has been given the opportunity
to obtain any additional information or documents and to ask questions and
receive answers about such documents, the Company and the business and
prospects of the Company which he deems necessary to evaluate the merits and
risks related to his investment in Option Stock, if any, and to verify the
information contained in the Prospectus and the information received as
indicated in this Section 2(f)(ii), and he has relied solely on such
information.


 


(g)                                 The
Management Stockholder further represents and warrants that (i) his financial
condition is such that he can afford to bear the economic risk of holding the
Option Stock, for an indefinite period of time and has adequate means for
providing for his current needs and personal contingencies, (ii) he can afford
to suffer a complete loss of his or her investment in the Option Stock, (iii)
he understands and has taken cognizance of all risk factors related to the
purchase of the Option Stock, if any, including those set forth in the
Prospectus referred to above, and (iv) his knowledge and experience in
financial and business matters are such that he is capable of evaluating the
merits and risks of his purchase of the Option Stock, if any, as contemplated
by this Agreement.


 


3.                                       Restriction
on Transfer.  [NOT APPLICABLE AFTER
MAY 19, 2002]


 


Except for transfers permitted by clauses (x), (y) and (z) of Section 2(a)
or a sale of shares of Stock pursuant to an effective registration statement
under the Act filed by the Company or pursuant to the Sale Participation
Agreement (as defined below), the Management Stockholder agrees that he will
not transfer any shares of the Stock at any time prior to the fifth anniversary
of the Base Date.  No transfer of any
such shares in violation hereof shall be made or recorded on the books of the
Company and any such transfer shall be void and of no effect.


 





















 


4.                                       Right
of First Refusal.  [NO LONGER
APPLICABLE]


 


If on the fifth anniversary of the Base Date the Common Stock is not
admitted to trading on any national securities exchange or the NASDAQ Stock
Market, and, at any time after the fifth anniversary of the Base Date and prior
to a Public Offering (as hereinafter defined), the Management Stockholder
receives a bona fide offer to purchase any or all of his shares of Stock (the “Offer”)
from a third party (the “Offeror”) which the Management Stockholder wishes to
accept, the Management Stockholder shall cause the Offer to be reduced to
writing and shall notify the Company in writing of his wish to accept the
Offer.  The Management Stockholder’s
notice shall contain an irrevocable offer to sell such shares of Stock to the
Company (in the manner set forth below) at a purchase price equal to the price
contained in, and on the same terms and conditions of, the Offer, and shall be
accompanied by a true copy of the Offer (which shall identify the
Offeror).  At any time within 30 days
after the date of the receipt by the Company of the Management Stockholder’s
notice, the Company shall have the right and option to purchase, or to arrange
for a third party to purchase, all of the shares of Stock covered by the Offer
either (i) at the same price and on the same terms and conditions as the Offer
or (ii) if the Offer includes any consideration other than cash, then at the
sole option of the Company, at the equivalent all cash price, determined in
good faith by the Company’s Board of Directors, by delivering a certified bank
check or checks in the appropriate amount (and any such non-cash consideration
to be paid) to the Management Stockholder at the principal office of the
Company against delivery of certificates or other instruments representing the
shares of Stock so purchased, appropriately endorsed by the Management
Stockholder.  If at the end of such 30
day period, the Company has not tendered the purchase price for such shares in
the manner set forth above, the Management Stockholder may during the
succeeding 30 day period sell not less than all of the shares of Stock covered
by the Offer to the Offeror at a price and on terms no less favorable to the
Management Stockholder than those contained in the Offer.  Promptly after such sale, the Management
Stockholder shall notify the Company of the consummation thereof and shall
furnish such evidence of the completion and time of completion of such sale and
of the terms thereof as may reasonably be requested by the Company.  If, at the end of 30 days following the
expiration of the 30 day period for the Company to purchase the Stock, the
Management Stockholder has not completed the sale of such shares of the Stock
as aforesaid, all the restrictions on sale, transfer or assignment contained in
this Agreement shall again be in effect with respect to such shares of the
Stock.


 


5.                                       Management
Stockholder’s Resale of Stock and Options to the

Company Upon The Management Stockholder’s Death or Disability or

in Case of Certain Terminations of Employment.    [NO LONGER APPLICABLE]


 


(a)                                  Except
as otherwise provided herein, if, prior to the fifth anniversary of the Base
Date, (i) the Management Stockholder is still in the employ of the Company or
any subsidiary of the Company, or has retired from the Company and its
subsidiaries at age 65 or over (or such other age as may be approved by the
Board of Directors of the Company) after having been employed by the Company or
any subsidiary for at least three years after the Base Date, and (ii) the
Management Stockholder either dies or becomes permanently disabled then the
Management Stockholder, the Management Stockholder’s Estate or a Management
Stockholder’s Trust, as the case may be, shall have the right, for six months
following the date of death or permanent disability, (A) to sell to the
Company, and the Company shall be required to purchase, on one occasion, all or
any portion of the shares of Stock then held by the Management Stockholder, the
Management Stockholder’s Estate and/or the Management Stockholder’s Trust, as
the case may be, at the Section 5(a) Repurchase Price, as determined in
accordance with Section 7, and (B) to require the Company to pay to the
Management Stockholder or the Management Stockholder’s


 





















 


Estate or the Management Stockholder’s Trust, as the case may be, an
additional amount equal to the Option Excess Price determined on the basis of a
Section 5(a) Repurchase Price as provided in Section 8 with respect
to the termination of outstanding Options held by the Management Stockholder.


 


(b)                                 [Intentionally
omitted]


 


(c)                                  The
Management Stockholder, the Management Stockholder’s Estate and/or the
Management Stockholder’s Trust, as the case may be, shall send written notice
to the Company of its intention to sell shares of Stock in exchange for the
payment referred in Section 5(a) above and to terminate such Options in
exchange for the payment referred to in Section 5(a) (the “Redemption
Notice”).  The completion of the purchase
shall take place at the principal office of the Company on the tenth business
day after the giving of the Redemption Notice. 
The applicable Repurchase Price and any payment with respect to the
Options as described above shall be paid by delivery to the Management Stockholder,
the Management Stockholder’s Estate or the Management Stockholder’s Trust, as
the case may be, of a certified bank check or checks in the appropriate amount
payable to the order of the Management Stockholder, the Management Stockholder’s
Estate or the Management Stockholder’s Trust, as the case may be, against
delivery of certificates or other instruments representing the Stock so
purchased and appropriate documents cancelling the Options so terminated
appropriately endorsed or executed by the Management Stockholder, the
Management Stockholder’s Estate or the Management Stockholder’s Trust, or his,
her or its duly authorized representative. 
For purposes of this Agreement, the Management Stockholder shall be
deemed to have a “permanent disability” if the Management Stockholder is unable
to engage in the activities required by the Management Stockholder’s job by
reason of any medically determined physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months.


 


(d)                                 Notwithstanding
anything in Section 5(a) to the contrary and subject to Section 11,
if there exists and is continuing a default or an event of default on the part
of the Company or any subsidiary of the Company under any loan, guarantee or
other agreement under which the Company or any subsidiary of the Company has
borrowed money or if the repurchase referred to in Section 5(a) would
result in a default or an event of default on the part of the Company or any
subsidiary of the Company under any such agreement or if a repurchase would not
be permitted under the Delaware General Corporation Law (the “DGCL”) or would
otherwise violate the DGCL (or if the Company reincorporates in another state,
the business corporation law of such state) (each such occurrence being an “Event”),
the Company shall not be obligated to repurchase any of the Stock or the
Options from the Management Stockholder, the Management Stockholder’s Estate or
a Management Stockholder’s Trust, as the case may be, until the first business
day which is 10 calendar days after all of the foregoing Events have ceased to
exist (the “Repurchase Eligibility Date”); provided, however,
that (i) the number of shares of Stock subject to repurchase under this Section 5(d)
shall be that number of shares of Stock, and (ii) in the case of a repurchase
pursuant to Section 5(a), the number of Exercisable Option Shares (as
defined in Section 8) for purposes of calculating the Option Excess Price
payable under this Section 5(d) shall be the number of Exercisable Option
Shares, held by the Management Stockholder, the Management Stockholder’s Estate
or a Management Stockholder’s Trust, as the case may be, at the time of
delivery of a Redemption Notice in accordance with Section 5(c) hereof; provided,
further, that the Repurchase Calculation Date shall be determined in
accordance with Section 7 as of the Repurchase Eligibility Date (unless,
in a repurchase pursuant to Section 5(a), the Section 5(a)


 





















 


Repurchase Price would be greater if the Repurchase Calculation Date
had been determined as if no Event had occurred in which case, solely for
purposes of this proviso, the Repurchase Calculation Date shall be
determined as if no Event had occurred). 
All Options exercisable as of the date of a Redemption Notice, in the
case of a repurchase pursuant to Section 5(a), shall continue to be
exercisable until the repurchase pursuant to such Redemption Notice, provided
that to the extent any Options are exercised after the date of such Redemption
Notice, the number of Exercisable Option Shares for purposes of calculating the
Option Excess Price shall be reduced accordingly.


 


(e)                                  Notwithstanding
any other provision of this Section 5 to the contrary and subject to Section 11,
the Management Stockholder, the Management Stockholder’s Estate or a Management
Stockholder’s Trust, as the case may be, shall have the right to withdraw any
Redemption Notice which has been pending for 60 or more days and which has
remained unsatisfied because of the provisions of Section 5(d).


 


6.                                       The
Company’s Option to Repurchase Stock

and Options of Management Stockholder. 
[NO LONGER APPLICABLE]


 


(a)                                  If,
on or prior to the fifth anniversary of the Base Date, (i) the Management
Stockholder’s active employment with the Company (and/or, if applicable, its
subsidiaries) is terminated by the Company with Cause (as hereinafter defined)
or by the Management Stockholder without Good Reason (as hereinafter defined),
(ii) the beneficiaries of a Management Stockholder’s Trust shall include any
person or entity other than the Management Stockholder, his spouse or his
lineal descendants, or (iii) the Management Stockholder shall effect a transfer
of any of the Stock other than as permitted in this Agreement (each, a “Section 6(a)
Call Event”), then the Company shall have the right to purchase all, but not
less than all, of the shares of the Stock then held by the Management
Stockholder or a Management Stockholder’s Trust at the Section 6(a)
Repurchase Price determined in accordance with Section 7 hereof.  If any Section 6(a) Call Event has
occurred, then, whether or not the Company exercises the call rights granted
under this Section 6(a), the Options (whether or not then exercisable)
held by the Management Stockholder or the Management Stockholder’s Trust, as
the case may be, will terminate immediately without payment therefor.


 


(b)                                 If,
on or prior to the fifth anniversary of the Base Date, the Management
Stockholder’s employment is terminated as a result of the death or permanent
disability of the Management Stockholder or if the Management Stockholder dies
or becomes permanently disabled after the retirement of the Management
Stockholder from the Company or any of its subsidiaries at age 65 or over (or such
other age as may be approved by the Board of Directors of the Company) after
having been employed by the Company or any subsidiary for at least three years
after the Base Date, (each a “Section 6(b) Call Event”), then the Company
shall have the right to purchase all, but not less than all, of the shares of
Stock then held by the Management Stockholder, the Management Stockholder’s
Estate or a Management Stockholder’s Trust at the Section 5(a) Repurchase
Price.


 


(c)                                  If,
on or prior to the fifth anniversary of the Base Date, the Management
Stockholder’s employment is terminated as a result of a termination by the
Management Stockholder with Good Reason or upon the retirement of the
Management Stockholder from the Company or any of its subsidiaries at age 65 or
over (or such other age as may be approved by the Board of Directors of the
Company) after having been employed by the Company or any


 





















 


subsidiary for at least three years after the Base Date, or by the
Company without Cause (each a “Section 6(c) Call Event” and together with Section 6(a)
Call Events and Section 6(b) Call Events, “Call Events”), then the Company
shall have the right to purchase all, but not less than all, of the shares of
Stock then held by the Management Stockholder or a Management Stockholder’s
Trust at the Section 6(c) Repurchase Price.


 


(d)                                 The
Company shall have a period of 75 days from the date of a Call Event in which
to give notice in writing to the Management Stockholder of the exercise of such
election (“Call Notice”).  In the event
that the Company exercises its right to repurchase shares of Stock pursuant to Section 6(b)
or Section 6(c), the Company shall also pay the Management Stockholder an
amount equal to the Option Excess Price determined on the basis of the Section 5(a)
Repurchase Price or Section 6(c) Repurchase Price, respectively, as
provided in Section 8, with respect to the termination of outstanding
Options held by the Management Stockholder.


 


(e)                                  The
completion of the purchases pursuant to the foregoing shall take place at the
principal office of the Company on the tenth business day after the giving of
notice of the exercise of the option to purchase.  The applicable Repurchase Price and any
payment with respect to the Options as described in Sections 6(d) above shall
be paid by delivery to the Management Stockholder, the Management Stockholder’s
Estate or a Management Stockholder’s Trust, as the case may be, of a certified
bank check or checks in the appropriate amount payable to the order of the
Management Stockholder, the Management Stockholder’s Estate or a Management
Stockholder’s Trust, as the case may be, against delivery of certificates or
other instruments representing the Stock so purchased and appropriate documents
cancelling the Options so terminated, appropriately endorsed or executed by the
Management Stockholder, the Management Stockholder’s Estate or a Management
Stockholders Trust or his, her or its authorized representative.


 


(f)                                    Notwithstanding
any other provision of this Section 6 to the contrary and subject to Section 11,
if there exists and is continuing any Event, the Company shall delay the
repurchase of any of the Stock or the Options (pursuant to a Call Notice timely
given in accordance with Section 6(d) hereof) from the Management Stockholder,
the Management Stockholder’s Estate or a Management Stockholder’s Trust, as the
case may be, until the Repurchase Eligibility Date; provided, however,
that (i) the number of shares of Stock subject to repurchase under this Section 6(f)
shall be that number of shares of Stock and (ii) in the case of a repurchase
pursuant to Section 6(b) or Section 6(c), the number of Exercisable
Option Shares for purposes of calculating the Option Excess Price payable under
this Section 6(f) shall be the number of Exercisable Option Shares held by
the Management Stockholder, the Management Stockholder’s Estate or a Management
Stockholder’s Trust, as the case may be, at the time of delivery of a Call
Notice in accordance with Section 6(d) hereof; and provided, further,
that the Repurchase Calculation Date shall be determined in accordance with Section 7
based on the Repurchase Eligibility Date (unless (x) in the case of a Section 6(b)
Call Event or a Section 6(c) Call Event, the applicable Repurchase Price
would be greater if the Repurchase Calculation Date had been determined as if
no Event had occurred, in which case the Repurchase Calculation Date shall be
determined as if no Event had occurred, and (y) in the case of a Section 6(a)
Call Event, the applicable Repurchase Price would be less if the Repurchase
Calculation Date had been determined as if no Event had occurred, in which case
the Repurchase Calculation Date shall be determined as if no Event had
occurred).  All Options exercisable as of
the date of a Call Notice, in the case of a repurchase pursuant to Section 6(b)
or Section 6(c), shall continue to be 


 





















 


exercisable until the repurchase pursuant to such Call Notice, provided
that to the extent that any Options are exercised after the date of such Call
Notice, the number of Exercisable Option Shares for purposes of calculating the
Option Excess Price shall be reduced accordingly.


 


7.                                       Determination
of Repurchase Price.   [NO LONGER
APPLICABLE]


 


(a)                                  The
Section 5(a) Repurchase Price, Section 6(a) Repurchase Price and the Section 6(c)
Repurchase Price are hereinafter collectively referred to as the “Repurchase
Price.”  The Repurchase Price shall be
calculated on the basis of the unaudited financial statements of the Company or
the Market Price Per Share (as defined in Section 7(j)) as of the last day
of the month preceding the later of (i) the month in which the event giving
rise to the repurchase occurs and (ii) the month in which the Repurchase
Eligibility Date occurs (hereinafter called the “Repurchase Calculation Date”).  The event giving rise to the repurchase shall
be the death, permanent disability, retirement or termination of employment, as
the case may be, of the Management Stockholder, not the giving of any notice
required pursuant to Section 5 or 6.


 


(b)                                 The
Section 5(a) Repurchase Price shall be a per share Repurchase Price equal
to the Base Price, provided that if the Book Value Per Share (as defined in Section 7(h))
(or, after a Public Offering, the Market Price Per Share) as of the Repurchase
Calculation Date is greater than the Base Price, then the Section 5(a)
Repurchase Price shall be equal to the Base Price plus the amount by which the
Book Value Per Share (or, after a Public Offering, the Market Price Per Share)
as of the Repurchase Calculation Date exceeds the Base Price.


 


(c)                                  [Intentionally
omitted]


 


(d)                                 The
Section 6(a) Repurchase Price shall be a per share Repurchase Price equal
to the least of (i) after a Public Offering, the Market Price Per Share, (ii)
if the Book Value Per Share as of the Repurchase Calculation Date is less than
the Base Price, the Base Price less the amount by which the Base Price exceeds
Book Value Per Share as of the Repurchase Calculation Date (but shall not be
less than zero),  and (iii) if the Book
Value Per Share as of the Repurchase Calculation Date exceeds the Base Price,
the Base Price plus (x) the Percentage (as defined below) multiplied by (y) the
amount by which the Book Value Per Share as of the Repurchase Calculation Date
exceeds the Base Price.


 


(e)                                  The
Section 6(c) Repurchase Price shall be a per share Repurchase Price equal
to the Base Price, provided (x) if the Book Value Per Share (or, after a Public
Offering, the Market Price Per Share) as of the Repurchase Calculation Date is
less than the Base Price, then the Section 6(c) Repurchase Price shall
equal the Base Price less the amount by which the Base Price exceeds Book Value
Per Share (or, after a Public Offering, the Market Price Per Share) as of the
Repurchase Calculation Date, and (y) if the Book Value Per Share (or, after a
Public Offering, the Market Price Per Share) as of the Repurchase Calculation
Date is greater than the Base Price, then the Section 6(c) Repurchase
Price shall equal the Base Price plus the amount by which the Book Value Per
Share (or, after a Public Offering, the Market Price Per Share) as of the
Repurchase Calculation Date exceeds the Base Price, as the case may be.


 


(f)                                    For
purposes of this Agreement the following definitions shall apply: “Cause” shall
mean (i) the Management Stockholder’s willful and continued failure to perform
Management Stockholder’s duties with respect to the Company or its subsidiaries
which continues beyond ten days after a written demand for substantial
performance is delivered to


 





















 


Management Stockholder by the Company or (ii) misconduct by Management
Stockholder involving (x) dishonesty or breach of trust in connection with
Management Stockholder’s employment or (y) conduct which would be a reasonable
basis for an indictment of Management Stockholder for a felony or for a
misdemeanor involving moral turpitude or (z) which results in a demonstrable
injury to the Company; and “Good Reason” shall mean (i) a reduction in
Management Stockholder’s base salary (other than a broad based salary reduction
program affecting many members of management), (ii) a substantial reduction in
Management Stockholder’s duties and responsibilities other than as approved by
the Chief Executive Officer of the Company as of the date of this Agreement,
(iii) the elimination or reduction of the Management Stockholder’s eligibility
to participate in the Company’s benefit programs that is inconsistent with the
eligibility of similarly situated employees of the Company to participate
therein, or (iv) a transfer of the Management Stockholder’s primary workplace
by more than fifty (50) miles from the workplace as of the date hereof.


 


(g)                                 For
purposes of this Agreement, the “Percentage” shall be determined as follows:


 


	
  Repurchase
  Calculation Date

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date through and including the first
  anniversary of the Base Date

  	
   

  	
  0%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The first anniversary of the Base Date through and including the
  second anniversary of the Base Date

  	
   

  	
  20%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The second anniversary of the Base Date through and including the
  third anniversary of the Base Date

  	
   

  	
  40%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The third anniversary of the Base Date through and including the
  fourth anniversary of the Base Date

  	
   

  	
  60%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The fourth anniversary of the Base Date through and including the
  fifth anniversary of the Base Date

  	
   

  	
  80%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The fifth anniversary of the Base Date

  	
   

  	
  100%

  	
   

  	
   

  



 


(h)                                 As
used herein, “Book Value Per Share” shall be the quotient of (a) (i)
$455,440,830 plus (ii) the aggregate net income of the Company from and
after the date of the Effective Time of the Merger (as decreased by any net
losses from and after the date of the Effective Time of the Merger) excluding
any one time costs and expenses charged to income associated with the Merger
and any related transactions plus (iii) the aggregate dollar amount
contributed to (or credited to common stockholders’ equity of) the Company
after the date of the Effective Time of the Merger as equity of the Company
(including consideration to be received upon exercise of the Options and other
stock equivalents) plus (iv) to the extent reflected as deductions to
Book Value Per Share in clause (ii) above, or minus, to the extent reflected as
additions to Book Value Per Share in clause (ii) above, unusual or other items
recognized by the Company (including, without limitation, one time or accelerated
write-offs of good will), in each case, if and to the extent determined in the
sole discretion of the Board of Directors of the Company, minus, (v) the
aggregate dollar amount of any dividends paid by the Company after the date of
the Effective Time of the Merger, divided by (b) the sum of the number of
shares of Common Stock then outstanding and the number of shares of Common
Stock issuable upon the


 





















 


exercise of all outstanding stock options and other rights to acquire
Common Stock and the conversion of all securities convertible into shares of
Common Stock.  The items referred to in
the calculations set forth in clauses (a)(ii), (a)(iii), (a)(iv) and (a)(v) of
the immediately preceding sentence shall be determined in accordance with
generally accepted accounting principles applied on a basis consistent with any
prior periods as reflected in the consolidated financial statements of the
Company.


 


(i)                                     As
used herein the term “Public Offering” shall mean the sale of shares of Common
Stock to the public subsequent to the date hereof pursuant to a registration
statement under the Act which has been declared effective by the SEC (other
than a registration statement on Form S-8 or any other similar form) which
results in an active trading market in 35% or more of the Common Stock.  A “Qualified Public Offering” shall mean a
Public Offering pursuant to an effective registration statement relating to the
sale of shares of the Common Stock held by KKR 1996 Fund L.P., a Delaware
limited partnership (the “Partnership”) or NXS Associates, L.P., a Delaware
limited partnership, or their respective affiliates; provided, however,
that a “Qualified Public Offering” shall be deemed to have occurred if there
has been any Public Offering and there exists an active trading market in 40%
or more of the Common Stock.


 


(j)                                     As
used herein, the term “Market Price Per Share” shall mean the price per share
equal to the average of the last sale price of the Common Stock on the
Repurchase Calculation Date on each exchange on which the Common Stock may at
the time be listed or, if there shall have been no sales on any of such
exchanges on the Repurchase Calculation Date, the average of the closing bid
and asked prices on each such exchange at the end of the Repurchase Calculation
Date or if there is no such bid and asked price on the Repurchase Calculation
Date on the next preceding date when such bid and asked price occurred or, if
the Common Stock shall not be so listed, the average of the closing sales
prices as reported by NASDAQ at the end of the Repurchase Calculation Date in
the over-the-counter market.  If the
Common Stock is not so listed or reported by NASDAQ, then the Market Price Per
Share shall be the Book Value Per Share.


 


(k)                                  In
determining the Repurchase Price, appropriate adjustments shall be made for any
stock dividends, splits, combinations, recapitalizations or any other
adjustment in the number of outstanding shares of Common Stock in order to
maintain, as nearly as practicable, the intended operation of the provisions of
this Section 7.


 


8.                                       Stock
Issued to Management Stockholder Upon Exercise of Stock Options; Termination of
Options.


 


(a)                                  The
Company may from time to time grant to the Management Stockholder, in addition
to the Options, options under the Option Plan to purchase shares of Common
Stock at the Base Price or at a different option exercise price.  The term “Issued Stock” as used in this
Agreement shall include all shares of Common Stock of the Company purchased by
the Management Stockholder pursuant to this Agreement and issued to the
Management Stockholder by the Company upon exercise of the Options and of any
other stock options held by the Management Stockholder.


 


(b)                                 [NO
LONGER APPLICABLE]  In the case of an
exercise of the put or call rights described above in Section 6(a), all
outstanding Options of the Management Stockholder (whether or not then
exercisable) will be automatically terminated without payment therefor.  In


 





















 


the case of an exercise of the put rights described above in Section 5(a)
or of the call rights described above in Sections 6(b) or 6(c), all outstanding
Options granted to the Management Stockholder under the Option Plan or
otherwise, whether or not then exercisable, will be automatically terminated
upon the payment by the Company to the Management Stockholder, pursuant to the
provisions of Sections 5(a) or 6(d) of this Agreement, as the case may be, of
an amount equal to the Option Excess Price. 
If the Option Excess Price is zero or a negative number, all outstanding
stock options granted to the Management Stockholder under the Option Plan or
otherwise, whether or not then exercisable, shall be automatically terminated
upon the repurchase of Stock as provided in Sections 5(a), 6(b) or 6(c).  With respect to each Option, the Option
Excess Price is the excess, if any, of the Section 5(a) Repurchase Price
or the Section 6(c) Repurchase Price, depending on which Repurchase Price
is being used to repurchase the remainder of the Stock, over the Option
Exercise Price (as defined in the Non-Qualified Option Agreement), multiplied
by the number of Exercisable Option Shares thereunder.  For purposes hereof, “Exercisable Option
Shares” shall mean the shares of Common Stock which, at the time of
determination of the Option Excess Price could be purchased by the Management
Stockholder upon exercise of his or her outstanding options.  The Company will use its reasonable best
efforts to cause a Registration Statement on Form S-8 covering shares of Issued
Stock contemplated hereby to be filed within six months of the date hereof.


 


9.                                       The
Company’s Representations and Warranties.


 


(a)                                  The
Company represents and warrants to the Management Stockholder that (i) this
Agreement has been duly authorized, executed and delivered by the Company and
(ii) the Issued Stock, when issued and delivered in accordance with the terms
hereof, will be duly and validly issued, fully paid and nonassessable.


 


(b)                                 The
Company will file the reports required to be filed by it under the Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder, to
the extent required from time to time to enable the Management Stockholder to
sell shares of Stock without registration under the Act within the limitations
of the exemptions provided by (A) Rule 144 under the Act, as such Rule may be
amended from time to time, or (B) any similar rule or regulation hereafter
adopted by the SEC.  Notwithstanding
anything contained in this Section 9(b), the Company may de-register under
Section 12 of the Exchange Act if it is then permitted to do so pursuant
to the Exchange Act and the rules and regulations thereunder and, in such
circumstances, shall not be required hereby to file any reports which may be
necessary in order for Rule 144 or any similar rule or regulation under the Act
to be available.  Nothing in this Section 9(b)
shall be deemed to limit in any manner the restrictions on sales of Stock
contained in this Agreement.


 


10                                    “Piggyback”
Registration Rights  [NOT APPLICABLE
AFTER MAY 19, 2002]


 


(a)                                  Effective
upon the date of this Agreement, until the later of (i) the first occurrence of
a Qualified Public Offering (as defined in Section 7(i) above) or (ii) the
fifth anniversary of the Base Date, the Management Stockholder hereby agrees to
be bound by all of the terms, conditions and obligations of the Registration
Rights Agreement dated as of May 19, among the Company (as successor by Merger
to Newco), KKR 1996 Fund L.P., NXS Associates, L.P. KKR Partners II, L.P. and
NXS I, L.L.C. (the “Registration Rights Agreement”) and, in the case of a
Qualified Public Offering and subject to the limitations set forth in this Section 10,
shall have all of the rights and privileges of the Registration Rights
Agreement, in each case as if the


 





















 


Management Stockholder were an original party (other than the Company)
thereto; provided, however, that the Management Stockholder shall
not have any rights to request registration under Section 3 of the
Registration Rights Agreement; and provided  further, that the
Management Stockholder shall not be bound by any amendments to the Registration
Rights Agreement unless the Management Stockholder consents thereto.  Notwithstanding anything to the contrary
contained in the Registration Rights Agreement, the Management Stockholder’s
rights and obligations under the Registration Rights Agreement shall be subject
to the limitations and additional obligations set forth in this Section 10.  All Stock purchased or held by the Management
Stockholder, the Management Stockholder’s Estate or the Management Stockholder’s
Trust pursuant to this Agreement shall be deemed to be Registrable Securities
as defined in the Registration Rights Agreement.


 


(b)                                 The
Company will promptly notify the Management Stockholder in writing (a “Notice”)
of any proposed registration (a “Proposed Registration”) in connection with a
Qualified Public Offering.  If within 15
days of the receipt by the Management Stockholder of such Notice, the Company
receives from the Management Stockholder, the Management Stockholder’s Estate
or the Management Stockholder’s Trust a written request (a “Request”) to
register shares of Stock held by the Management Stockholder, the Management
Stockholder’s Estate or the Management Stockholder’s Trust (which Request will
be irrevocable unless otherwise mutually agreed to in writing by the Management
Stockholder and the Company), shares of Stock will be so registered as provided
in this Section 10; provided, however, that for each such
registration statement only one Request, which shall be executed by the Management
Stockholder, the Management Stockholder’s Estate or the Management Stockholder’s
Trust, as the case may be, may be submitted for all Registrable Securities held
by the Management Stockholder, the Management Stockholder’s Estate and the
Management Stockholder’s Trust.


 


(c)                                  The
maximum number of shares of Stock which will be registered pursuant to a
Request will be the lowest of (i) the number of shares of Stock then held by
the Management Stockholder (which for purposes of this subparagraph (c) shall include
shares held by the Management Stockholder’s Estate or a Management Stockholder’s
Trust), including all shares of Stock which the Management Stockholder is then
entitled to acquire under an unexercised Option to the extent then exercisable
or (ii) the maximum number of shares of Stock which the Company can register in
the Proposed Registration without adverse effect on the offering in the view of
the managing underwriters (reduced pro rata with all Other Management
Stockholders) as more fully described in subsection (d) of this Section 10
or (iii) the maximum number of shares which the Management Stockholder (pro
rata based upon the aggregate number of shares of Common Stock the Management
Stockholder and all Other Management Stockholders have requested be registered)
and all Other Management Stockholders are permitted to register under the
Registration Rights Agreement.


 


(d)                                 If
a Proposed Registration involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
shares of Stock requested to be included in the Proposed Registration exceeds
the number which can be sold in such offering, so as to be likely to have an
adverse effect on the price, timing or distribution of the shares of Stock
offered in such Qualified Public Offering as contemplated by the Company, then
the Company will include in the Proposed Registration (i) first, 100% of the
shares of Stock the Company proposes to sell and (ii) second, to the extent of
the number of shares of Stock requested to be included in such registration
which, in the opinion of such managing underwriter, can be sold without having
the adverse effect referred to above, the number of shares of Stock


 





















 


which the “Holders” (as defined in the Registration Rights Agreement),
including, without limitation, the Management Stockholder and Other Management
Stockholders have requested to be included in the Proposed Registration, such
amount to be allocated pro rata among all requesting Holders on the basis of
the relative number of shares of Stock then held by each such Holder (provided
that any shares thereby allocated to any such Holder that exceed such Holder’s
request will be reallocated among the remaining requesting Holders in like
manner).


 


(e)                                  Upon
delivering a Request the Management Stockholder will, if requested by the
Company, execute and deliver a custody agreement and power of attorney in form
and substance satisfactory to the Company with respect to the shares of Stock
to be registered pursuant to this Section 10 (a “Custody Agreement and
Power of Attorney”).  The Custody
Agreement and Power of Attorney will provide, among other things, that the
Management Stockholder will deliver to and deposit in custody with the
custodian and attorney-in-fact named therein a


 


certificate or certificates representing such shares of Stock (duly
endorsed in blank by the registered owner or owners thereof or accompanied by
duly executed stock powers in blank) and irrevocably appoint said custodian and
attorney-in-fact as the Management Stockholder’s agent and attorney-in-fact
with full power and authority to act under the Custody Agreement and Power of
Attorney on the Management Stockholder’s behalf with respect to the matters
specified therein.


 


(f)                                    The
Management Stockholder agrees that he or she will execute such other agreements
as the Company may reasonably request to further evidence the provisions of
this Section 10.


 


11                                    Pro
Rata Repurchases.  [NO LONGER
APPLICABLE]


 


Notwithstanding anything to the contrary contained in Sections 5, 6 or
7, if at any time consummation of all purchases and payments to be made by the
Company pursuant to this Agreement and the Other Management Stockholders’
Agreements would result in an Event, then the Company shall make purchases from,
and payments to, the Management Stockholder and Other Management Stockholders
pro rata (on the basis of the proportion of the number of shares of Stock and
the number of Options each such Management Stockholder and all Other Management
Stockholders have elected or are required to sell to the Company) for the
maximum number of shares of Stock and shall pay the Option Excess Price for the
maximum number of Options permitted without resulting in an Event (the “Maximum
Repurchase Amount”).  The provisions of Section 5(d)
and 6(f) shall apply in their entirety to payments and repurchases with respect
to Options and shares of Stock which may not be made due to the limits imposed
by the Maximum Repurchase Amount under this Section 11.  Until all of such Stock and Options are
purchased and paid for by the Company, the Management Stockholder and the Other
Management Stockholders whose Stock and Options are not purchased in accordance
with this Section 11 shall have priority, on a pro rata basis, over other
purchases of Common Stock and Options by the Company pursuant to this Agreement
and Other Management Stockholders’ Agreements.


 


12                                    Rights
to Negotiate Repurchase Price.


 


Nothing in this Agreement shall be deemed to restrict or prohibit the
Company from purchasing shares of Stock or Options from the Management
Stockholder, at any time, upon such terms and conditions, and for such price,
as may be mutually agreed upon between the Parties,


 





















 


whether or not at the time of such purchase circumstances exist which
specifically grant the Company the right to purchase, or the Management
Stockholder the right to sell, shares of Stock or the Company has the right to
pay, or the Management Stockholder has the right to receive, the Option Excess
Price under the terms of this Agreement.


 


13                                    Covenant
Regarding 83(b) Election.


 


Except as the Company may otherwise agree in writing, the Management
Stockholder hereby covenants and agrees that he will make an election provided
pursuant to Treasury Regulation 1.83-2 with respect to the Stock to be acquired
upon each exercise of the Management Stockholder’s Non-Qualified Options; and
Management Stockholder further covenants and agrees that he will furnish the
Company with copies of the forms of election the Management Stockholder files
within 30 days after the date hereof, and within 30 days after each exercise of
Management Stockholder’s Non-Qualified Options and with evidence that each such
election has been filed in a timely manner.


 


14                                    Notice
of Change of Beneficiary.


 


Immediately prior to any transfer of Stock to a Management Stockholder’s
Trust, the Management Stockholder shall provide the Company with a copy of the
instruments creating the Management Stockholder’s Trust and with the identity
of the beneficiaries of the Management Stockholder’s Trust.  The Management Stockholder shall notify the
Company immediately prior to any change in the identity of any beneficiary of
the Management Stockholder’s Trust.


 


15                                    Expiration
of Certain Provisions.


 


The provisions contained in Sections 4, 5 and 6 of this Agreement and
the portion of any other provision of this Agreement which incorporates the
provisions of Sections 4, 5 and 6, shall terminate and be of no further force
or effect with respect to any shares of Stock sold by the Management Stockholder
(i) pursuant to an effective registration statement filed by the Company
pursuant to Section 10 hereof or (ii) pursuant to the terms of the Sale
Participation Agreement of even date herewith, among the Management
Stockholder, and KKR 1996 Fund L.P., NXS Associates, L.P. and KKR Partners II,
L.P.


 


The provisions contained in Sections 2(e), 3, 4, 5, 6 and 13 of this
Agreement, and the portion of any other provisions of this Agreement which
incorporate the provisions of such Sections, shall terminate and be of no
further force or effect upon (i) the sale of all or substantially all of the
assets of the Company to a person or group that is not an affiliate of Kohlberg
Kravis Roberts & Co. L.P. (“KKR”), (ii) an acquisition of voting stock of
the Company resulting in more than 50% of the voting stock of the Company being
held by a person or group that does not include KKR or any of its affiliates or
(iii) the consummation of a merger, reorganization, business combination or
liquidation of the Company, but only if such merger, reorganization, business
combination or liquidation results in the Partnership or NXS Associates, L.P.,
or any affiliate or affiliates thereof, together no longer having the power (A)
to elect a majority of the Board of Directors of the Company or such other
corporation which succeeds to the Company’s rights and obligations pursuant to
such merger, reorganization, business combination or liquidation, or (B) if the
resulting entity of such merger, reorganization, business combination or
liquidation is not a corporation, to select the general partner(s) or other
persons or entities controlling the operations and business of the resulting
entity.  Such provisions and the


 





















 


portion of any other provisions of this Agreement which incorporate
such provisions shall also terminate and be of no further force and effect if
the Management Stockholder’s employment is terminated and the Company has not
given a Call Notice within 75 days from the date of the applicable Call Event
(i) with respect to all the Stock of a Management Stockholder if the Management
Stockholder’s employment has been terminated as a result of termination by the
Management Stockholder with Good Reason or by the Company without Cause, and
(ii) with respect to only the Retained Stock and any Issued Stock (other than
any shares acquired upon the exercise of Options) or Market Stock of a
Management Stockholder if the Management Stockholder’s employment has been
terminated for any other reason.


 


16                                    Recapitalizations,
etc.


 


The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the Stock or the Options, to any and all shares of
capital stock of the Company or any capital stock, partnership units or any
other security evidencing ownership interests in any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in exchange for, or substitution of the Stock or
the Options, by reason of any stock dividend, split, reverse split,
combination, recapitalization, liquidation, reclassification, merger,
consolidation or otherwise.


 


17                                    Management
Stockholder’s Employment by the Company.


 


Nothing contained in this Agreement or in any other agreement entered
into by the Company and the Management Stockholder contemporaneously with the
execution of this Agreement (i) obligates the Company or any subsidiary of the
Company to employ the Management Stockholder in any capacity whatsoever or (ii)
prohibits or restricts the Company (or any such subsidiary) from terminating
the employment, if any, of the Management Stockholder at any time or for any
reason whatsoever, with or without Cause, and the Management Stockholder hereby
acknowledges and agrees that neither the Company nor any other person has made
any representations or promises whatsoever to the Management Stockholder
concerning the Management Stockholder’s employment or continued employment by
the Company or any subsidiary of the Company.


 


18                                    State
Securities Laws.


 


The Company hereby agrees to use its best efforts to comply with all
state securities or “blue sky” laws which might be applicable to the sale of
the Stock and the issuance of the Options to the Management Stockholder.


 


19                                    Binding
Effect.


 


The provisions of this Agreement shall be binding upon and accrue to
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. 
In the case of a transferee permitted under Section 2(a) hereof,
such transferee shall be deemed the Management Stockholder hereunder; provided,
however, that no transferee (including without limitation, transferees referred
to in Section 2(a) hereof) shall derive any rights under this Agreement
unless and until such transferee has delivered to the Company a valid
undertaking and becomes bound by the terms of this Agreement.


 





















 


20                                    Amendment.


 


This Agreement may be amended only by a written instrument signed by
the Parties hereto.


 


21                                    Closing.


 


Except as otherwise provided herein, the closing of each purchase and
sale of shares of Stock and the payment of the Option Excess Price, if any,
pursuant to this Agreement shall take place at the principal office of the
Company on the tenth business day following delivery of the notice by either
Party to the other of its exercise of the right to purchase or sell such Stock
hereunder or to cause the payment of the Option Excess Price, if any.


 


22                                    Applicable
Law.


 


The laws of the state of Delaware (or if the Company reincorporates in
another state, of that state) shall govern the interpretation, validity and
performance of the terms of this Agreement, regardless of the law that might be
applied under principles of conflicts of law. 
Any suit, action or proceeding against the Management Stockholder, with
respect to this Agreement, or any judgment entered by any court in respect of
any thereof, may be brought in any court of competent jurisdiction in the State
of Delaware (or if the Company reincorporates in another state, in that state)
or New York, as the Company may elect in its sole discretion, and the
Management Stockholder hereby submits to the non-exclusive jurisdiction of such
courts for the purpose of any such suit, action, proceeding or judgment.  By the execution and delivery of this
Agreement, the Management Stockholder appoints The Corporation Trust Company,
at its office in New York, New York or Wilmington, Delaware (or if the Company
reincorporates in another state, an office in that state), as the case may be,
as his agent upon which process may be served in any such suit, action or
proceeding.  Service of process upon such
agent, together with notice of such service given to the Management Stockholder
in the manner provided in Section 25 hereof, shall be deemed in every
respect effective service of process upon him in any suit, action or
proceeding.  Nothing herein shall in any
way be deemed to limit the ability of the Company to serve any such writs,
process or summonses in any other manner permitted by applicable law or to obtain
jurisdiction over the Management Stockholder, in such other jurisdictions and
in such manner, as may be permitted by applicable law.  The Management Stockholder hereby irrevocably
waives any objections which he may now or hereafter have to the laying of the
venue of any suit, action or proceeding arising out of or relating to this
Agreement brought in any court of competent jurisdiction in the State of
Delaware (or if the Company reincorporates in another state, in that state) or
New York, and hereby further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum.  No suit, action or
proceeding against the Company with respect to this Agreement may be brought in
any court, domestic or foreign, or before any similar domestic or foreign
authority other than in a court of competent jurisdiction in the State of
Delaware (or if the Company reincorporates in another state, in that state) or
New York, and the Management Stockholder hereby irrevocably waives any right which
he may otherwise have had to bring such an action in any other court, domestic
or foreign, or before any similar domestic or foreign authority.  The Company hereby submits to the
jurisdiction of such courts for the purpose of any such suit,


 





















 


action or proceeding.  Each Party
hereto hereby irrevocably and unconditionally waives trial by jury in any legal
action or proceeding in relation to this Agreement and for any counterclaim
therein.


 


23                                    Assignability
of Certain Rights by the Company.


 


The Company shall have the right to assign any or all of its rights or
obligations to purchase shares of Stock pursuant to Sections 4, 5 and 6 hereof;
provided, however, that the Company shall remain obligated to perform its
obligations notwithstanding such assignment in the event that such assignee
fails to perform the obligations so assigned to it.


 


24                                    Miscellaneous.


 


In this Agreement (i) all references to “dollars” or “$” are to United
States dollars and (ii) the word “or” is not exclusive.  If any provision of this Agreement shall be
declared illegal, void or unenforceable by any court of competent jurisdiction,
the other provisions shall not be affected, but shall remain in full force and
effect.


 


25                                    Notices.


 


All notices and other communications provided for herein shall be in
writing and shall be deemed to have been duly given if delivered by hand
(whether by overnight courier or otherwise) or sent by registered or certified
mail, return receipt requested, postage prepaid, or by overnight delivery or
telecopy, to the Party to whom it is directed:


 


(a)                                  If
to the Company, to it at the following address:


c/o Kohlberg Kravis Roberts & Co.


2800 Sand Hill Road - Suite 200


Menlo Park, California  94025


Attn: 
Michael Michelson


 


with a copy to:


Simpson Thacher & Bartlett


425 Lexington Avenue


New York, New York  10017-3909


Attn: 
Charles I. Cogut, Esq.


 


(b)                                 If
to the Management Stockholder, to him at the address set forth below under his
signature;


 


or at such other address as either party shall have specified by notice
in writing to the other.


 


26                                    Covenant
Not to Compete; Confidential Information.


 


(a)                                  In
consideration of the Company granting Options to the Management Stockholder and
entering into this Agreement with the Management Stockholder, the Management
Stockholder hereby agrees effective as of the Base Date, for so long as the
Management Stockholder is employed by the Company or one of its subsidiaries
and for a period


 





















 


of one year thereafter (the “Noncompete Period”), the Management
Stockholder shall not, directly or indirectly, engage in the production, sale
or distribution of any product produced, sold, distributed or which is in
development by the Company or its subsidiaries on the date hereof or during the
Noncompete Period anywhere in the world in which the Company or its
subsidiaries is doing business other than through the Management Stockholder’s
employment with the Company or any of its subsidiaries.  In the event that the Management Stockholder’s
employment is terminated by the Management Stockholder for Good Reason or by
the Company without Cause, then the Company shall pay the Management
Stockholder an amount equal to 50% of such Management Stockholder’s base salary
on the date of the termination of the Management Stockholder’s employment.  At the Company’s option, the Noncompete
Period may be extended for an additional one year period if (i) within nine
months of the termination of the Management Stockholder’s employment, the
Company gives the Management Stockholder notice of such extension and (ii) beginning
with the first anniversary of such termination, the Company pays the Management
Stockholder an amount equal to 50% of the Management Stockholder’s base salary
on the date of the termination of his employment.  Each amount referred to in the preceding two
sentences shall be paid in installments in a manner consistent with the then
current salary payment policies of the Company; provided that if at any time
the Company elects, in its sole discretion, to waive further compliance by the
Management Stockholder with the requirements of this Section 26(a) (upon
the Management Stockholder securing alternate employment or otherwise), then
the Company shall be relieved of its obligation to pay the unpaid balance, if
any, of such amounts which is then owing to the Management Stockholder.  For purposes of this Agreement, the phrase “directly
or indirectly engage in” shall include any direct or indirect ownership or
profit participation interest in such enterprise, whether as an owner,
stockholder, partner, joint venturer of otherwise, and shall include any direct
or indirect participation in such enterprise as a consultant, licensor of
technology or otherwise.


 


(b)                                 The
Management Stockholder will not disclose or use at any time any Confidential
Information (as defined below) of which the Management Stockholder is or
becomes aware, whether or not such information is developed by him, except to
the extent that such disclosure or use is directly related to and required by
the Management Stockholder’s performance of duties, if any, assigned to the
Management Stockholder by the Company. 
As used in this Agreement, the term “Confidential Information” means
information that is not generally known to the public and that is used,
developed or obtained by the Company or its subsidiaries in connection with its
business, including but not limited to (i) products or services, (ii) fees,
costs and pricing structures, (iii) designs, (iv) computer software, including
operating systems, applications and program listings, (v) flow charts, manuals
and documentation, (vi) data bases, (vii) accounting and business methods,
(viii) inventions, devices, new developments, methods and processes, whether
patentable or unpatentable and whether or not reduced to practice, (ix)
customers and clients and customer or client lists, (x) other copyrightable
works, (xi) all technology and trade secrets, and (xii) all similar and related
information in whatever form. 
Confidential Information will not include any information that has been
published in a form generally available to the public prior to the date the
Management Stockholder proposes to disclose or use such information.  The Management Stockholder acknowledges and
agrees that all copyrights, works, inventions, innovations, improvements,
developments, patents, trademarks and all similar or related information which
relate to the actual or anticipated business of the Company and its
subsidiaries (including its predecessors) and conceived, developed or made by
the Management Stockholder while employed by the Company or its subsidiaries
belong to the Company.  The Management
Stockholder will perform all actions reasonably requested by the Company
(whether during or after the Noncompete Period) to establish and confirm such


 





















 


ownership at the Company’s expense (including without limitation
assignments, consents, powers of attorney and other instruments).  If the Management Stockholder is bound by any
other agreement with the Company regarding the use or disclosure of
confidential information, the provisions of this Agreement shall be read in
such a way as to further restrict and not to permit any more extensive use or
disclosure of confidential information.


 


(c)                                  Notwithstanding
clauses (a) and (b) above, if at any time a court holds that the restrictions
stated in such clauses (a) and (b) are unreasonable or otherwise unenforceable
under circumstances then existing, the parties hereto agree that the maximum
period, scope or geographic area determined to be reasonable under such
circumstances by such court will be substituted for the stated period, scope or
area.  Because the Management Stockholder’s
services are unique and because the Management Stockholder has had access to
Confidential Information, the parties hereto agree that money damages will be
an inadequate remedy for any breach of this Agreement.  In the event a breach or threatened breach of
this Agreement, the Company or its successors or assigns may, in addition to
other rights and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive relief in order to
enforce, or prevent any violations of, the provisions hereof (without the
posting of a bond or other security).


 


IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.


 


 


	
   

  	
  AMPHENOL CORPORATION

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Martin H. Loeffler

  	
   

  
	
   

  	
   

  	
  Chairman, President & CEO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: Management Stockholder

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
    Address of Management Stockholder