Exhibit 10.53


 


[FORM OF] 2000 MANAGEMENT STOCKHOLDER’S
AGREEMENT


 


WHEREAS, this Management Stockholder’s Agreement (this “Agreement”) is
entered into as of the Grant Date
(the “Base Date”) between Amphenol Corporation, a Delaware Corporation
(the “Company”), and the Optionee (the “Management Stockholder”) (the Company
and the Management Stockholder being hereinafter collectively referred to as
the “Parties”).


 


WHEREAS, the Company has granted (and in the future may make additional
grants to) certain key employees of the Company (including the Management
Stockholder) options to purchase shares of the Company’s common stock (the “Common
Stock”) at a fixed exercise price per share (the “Base Price”) pursuant
to the terms of the Amended 2000 Stock Purchase and Option Plan for Key
Employees of Amphenol Corporation and Subsidiaries (the “Option Plan”)
and the related 2000 Non-Qualified Stock Option Agreement (any and all grants
under the Option Plan are hereinafter referred to as the “2000 Options”).


 


WHEREAS, this Agreement is one of several 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”).


 


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


 


1.                                       Common
Stock; Issuance of Options.


 


(a)                                  The
Company shall have no obligation to sell any Common Stock upon the exercise of
an Option to Purchase or otherwise to any person who is a resident or citizen
of a state or other jurisdiction in which the sale of Common Stock to him or
her would constitute a violation of the securities or “blue sky” laws of such
jurisdiction.


 


(b)                                 Subject
to the terms and conditions hereinafter set forth as of the Base Date (which
Base Date shall be different for future option awards, if any), the Company
shall issue to the Management Stockholder the Option to Purchase (as set forth
in the applicable Certificate of Stock Option
Grant) and the Optionee shall accept the applicable Non-Qualified
Stock Option Agreement as a precondition to the effectiveness of the Option to
Purchase.


 


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 of the
Common Stock issuable upon exercise of the 2000 Options (the “Option 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 Sections 4, 8 or 9 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”) provided that such transfer is
made expressly subject to this Agreement.


 


The certificate (or certificates) representing the Stock shall bear the
following legend:


 


“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 2000 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).”


 


(b)                                 The
Management Stockholder acknowledges that (i) the Company has caused a
Registration Statement on Form S-8 covering shares of Common Stock to be issued
pursuant to the exercise of options under the 2000 Option Plan to be filed
effective April 19, 2002, (ii) a restrictive legend in the form heretofore
set forth shall be placed on any certificates representing the Stock and (iii)
a notation shall be made in the appropriate records of the Company and the
representatives 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 Option
Stock must be held indefinitely and the Management Stockholder must continue to
bear the economic risk of any investment in the Option Stock unless it is
subsequently registered under the Act or an exemption from such


 





















 


registration is available, (2) when and if shares of the Option 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 or (3)
if the Rule 144 exemption is not available, public sale without registration
will require compliance with some other exemption under the Act.


 


(c)                                  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”).


 


(d)                                 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.


 


3.                                       Restriction
on Transfer


 


Except for transfers permitted (a) by clauses (x), (y) and (z) of Section 2(a),
(b) by a sale of shares of Stock pursuant to an effective registration
statement under the Act filed by the Company, and (c) pursuant to the Sale
Participation Agreement dated as of June 6, 2000 (the “2000 Sales
Participation Agreement”), the Management Stockholder agrees that he will not
transfer any shares of the Stock at any time prior to June 6, 2005.  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. 
Notwithstanding anything in this Agreement to the contrary, the
provisions of this Section 3 shall lapse and be of no further force and
effect upon the occurrence of a Control Event. 
For purposes of this Section 3, a “Control Event” shall be deemed
to have occurred at such time as (i) a person or group that is not the
Partnership and NXS (as hereinafter defined), or an affiliate of the
Partnership or NXS, holds a greater percentage of the total outstanding shares
of the Company (on a fully diluted basis) than that held by the Partnership and
NXS (and any of their affiliates) and (ii) a person or group that is not
the Partnership, NXS (and any of their affiliates) has the ability to elect
more members of the Board of Directors of the Company than the Partnership, NXS
or any of their affiliates.


 


4.                                       The
Management Stockholder’s Sale of Stock and 2000 Options Upon The Management
Stockholder’s Retirement, Death or Disability or in Case of Certain
Terminations of Employment. 


 


Except as otherwise provided herein, Management Stockholder may not
sell or transfer any Stock prior to June 6, 2005 unless (i) the Management
Stockholder has retired from the Company or its subsidiary at age 65 or over
(or such other age as may be approved by the


 





















 


Compensation Committee of the Board of Directors of the Company), or
(ii) the Management Stockholder dies, or (iii) the Management Stockholder
becomes permanently disabled.  In such
instances the Management Stockholder, the Management Stockholder’s Estate or a
Management Stockholder’s Trust, as the case may be, shall have the right to
sell 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 in an open market transaction free of
any continuing restrictions under this Agreement. 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.


 


5.                                       Definitions


 


(a)                                  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 the Committee determines is
likely to result in a demonstrable injury to the Company; and “Good Reason”
shall mean (i) 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
form the workplace as of the date hereof.


 


(b)                                 For
purposes of this Agreement, the KKR 1996 Fund L.P., a Delaware limited
partnership shall mean the “Partnership” and NXS Associates, L.P., a Delaware
limited partnership shall mean “NXS”.


 


6.                                       Continuing
Effectiveness of Agreement


 


(a)                                  The
Company may from time to time grant to the Management Stockholder additional
options under the 2000 Option Plan to purchase shares of Common Stock at a
different Base Price.  Unless agreed
otherwise any and all option awards after May 1, 2002 under the 2000 Option
Plan shall be subject to the terms and conditions of this Agreement.


 


7.                                       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 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 7(b), the Company may de-register under
Section 12 of the 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 7(b)
shall be deemed to limit in any manner the restrictions on sales of Stock
otherwise contained in this Agreement.


 


8.                                       “Piggyback”
Registration Rights.


 


(a)                                  The
Company will promptly notify the Management Stockholder (a “Notice”) of any
proposed registration (a “Proposed Registration”) in connection with any
offering of shares of Common Stock held by the Partnership or NXS or their
affiliates.  If within 2 business 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 and
sell shares of Stock held by the Management Stockholder, the Management
Stockholder’s Estate or the Management Stockholder’s Trust (which Request to
register and sell will be irrevocable regardless of the final offering price
and underwriters discounts, unless otherwise mutually agreed to in writing by
the Management Stockholder and the Company), shares of Stock will be so
registered and sold as provided in this Section 8; 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 or the Management Stockholder’s Trust.


 


(b)                                 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 (b) 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 vested and 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 (c) of this Section 8 or (iii) the maximum number of
shares which the Management Stockholder and all Other Management Stockholders
(pro rata based upon the aggregate number of shares of Stock the Management
Stockholder and all Other Management Stockholders have requested be registered)
are permitted to register under the 2000 Registration Rights Agreement.


 





















 


(c)                                  If
a Proposed Registration involves an underwritten offering and the managing
underwriter advises the Company 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 to
the public 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 selling
stockholders, 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 selling
stockholders on the basis of the relative number of shares of Stock then held
by each such selling stockholders (provided that any shares thereby allocated
to any such selling stockholders that exceed such selling stockholder’s request
will be reallocated among the remaining requesting selling stockholders in a
like manner).


 


(d)                                 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 8 (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.


 


(e)                                  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 8.


 


(f)                                    Notwithstanding
anything herein to the contrary, the Committee acting in its sole discretion
may elect not to notify any Management Stockholder of a Proposed Registration
or may elect not to include any Management Stockholder’s Stock in the Proposed
Registration notwithstanding Management Stockholder’s Request and absent an
indication from the managing underwriters that inclusion of such Management
Stockholder’s Stock in the Proposed Registration will have an adverse effect on
the offering; provided  however that should the Committee elect
not to provide notice of a Proposed Registration to such Management Stockholder
or not to include any such Stock in the Proposed Registration, the Committee
shall cause the Company to offer to purchase such Stock from any such
Management Stockholder at the price that the Management Stockholder would have
received had he received notice of and/or elected to participate in the
Proposed Registration.


 





















 


9.                                       Rights
to Negotiate Purchase.


 


Nothing in this Agreement shall be deemed to restrict or prohibit the
Company from purchasing shares of Stock or 2000 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.


 


10.                                 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.


 


11.                                 Expiration
of Certain Provisions.


 


The provisions contained in Sections 2(d), 3 and 4 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 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 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.


 


12.                                 Recapitalizations,
etc.


 


The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the Stock or the 2000 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 2000 Options, by reason of any stock dividend, split, reverse
split, combination, recapitalization, liquidation, reclassification, merger,
consolidation or otherwise.


 


13.                                 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 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.


 


14.                                 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 2000 Options to the Management Stockholder.


 


15.                                 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.


 


16.                                 Amendment


 


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


 


17.                                 Applicable
Law.


 


The laws of the State of Delaware 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 Connecticut, 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 Wilmington, Delaware, 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 20 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 Connecticut, 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 Connecticut, 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, 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.


 


18.                                 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.


 


19.                                 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 overnight delivery or
telecopy, to the Party to whom it is directed. 
In addition, the Company or the Company’s representatives may also
provide the Management Stockholder with notice via an appropriate email communication.


 


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


 


Amphenol Corporation


358 Hall Avenue


Wallingford, Connecticut 06492


 


Attn: 
Martin Loeffler


Phone: (203) 265-8730


Fax:    
(203) 265-8628


with a copy to:


c/o Kohlberg Kravis Roberts & Co.


2800 Sand Hill Road Suite 200


Menlo Park, California 94025


 


Attn: 
Michael Michelson


Phone:  (650) 233-6560


Fax:     
(650) 233-6554


 


(b)                                 If
to the Management Stockholder, to him or her at the address (including email
address) set forth in the records of the Company;


 





















 


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


 


20.                                 Covenant
Not to Compete; Confidential Information.


 


(a)                                  In
consideration of the Company entering into this Agreement with the Management
Stockholder, the Management Stockholder hereby agrees that 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.


 


(b)                                 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 as
additional required consideration for the Management Stockholder’s covenant not
to compete, the Company shall pay the Management Stockholder salary
continuation in an amount equal to 50% of such Management Stockholder’s base
salary on the date of the termination of the Management Stockholder’s
employment for the Noncompete Period.  In
the event that the Management Stockholder’s employment with the Company or any
of its subsidiaries is terminated by the Management Stockholder without Good
Reason or by the Company with Cause, then the Company shall not be required to
pay the Management Stockholder any additional consideration for the Management
Stockholder’s covenant not to compete.


 


(c)                                  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 agrees to continue to pay the Management Stockholder
salary continuation an amount equal to 50% of the Management Stockholder’s base
salary.  Each amount referred to in the
preceding two paragraphs shall be paid in installments in a manner consistent
with the then current salary payment policies of the Company.  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.  During the
Noncompete Period the Management Stockholder shall be free to work in any
employment approved by the Chief Executive Officer of the Company which
approval shall not be unreasonably withheld. 
Such approved employment shall not serve to reduce any payments that the
Management Stockholder is receiving pursuant to this provision.


 


(d)                                 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, vendors and clients and customer, vendors or client lists, (x)
personnel information, (xi) other copyrightable works, (xii) all technology and
trade secrets, and (xiii) 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 employment with the Company or 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.


 


(e)                                  Notwithstanding
clauses (a), (b), (c) and (d) above, if at any time a court holds that the
restrictions stated in such clauses (a), (b), (c) and (d) 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).