Exhibit 10.9


 


(As of May 20, 2009)


 


2009 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 2009 Amended and Restated Stock Purchase and
Option Plan for Key Employees of Amphenol Corporation and Subsidiaries (the “Option Plan”) and the related 2009
Non-Qualified Stock Option Grant Agreement (any and all grants under the Option
Plan are hereinafter referred to as the “2009 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 2009 Non-Qualified Stock Option
Grant 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 2009 Options (the “Option Stock”) unless such
transfer complies with Section 3 of this Agreement. If the Management
Stockholder is an 


 


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affiliate
(as defined under Rule 405 of the rules and regulations promulgated
under the Securities Act of 1933, as amended, (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 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 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 (y) 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.


 


(b)                                 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”).


 


3.                                       Restriction
on Transfer


 


No
transfer of Option Stock in violation of this Agreement shall be made or
recorded on the books of the Company and any such transfer shall be void and of
no effect.


 


4.                                       Definitions


 


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 


 


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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) an involuntary
transfer of the Management Stockholder’s primary workplace by more than fifty
(50) miles from the workplace as of the date hereof.


 


5.                                       Continuing
Effectiveness of Agreement


 


The
Company may from time to time grant to the Management Stockholder additional
options under the Option Plan, as currently in effect and as it may be amended
from time to time, to purchase shares of Common Stock at a different Base
Price. Unless agreed otherwise any and all option awards made on or after May 20,
2009 under the Option Plan, as currently in effect or as it may be amended from
time to time, shall be subject to the terms and conditions of this Agreement.


 


6.                                       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
Securities Exchange Act of 1934 (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 6(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 6(b) shall
be deemed to limit in any manner the restrictions on sales of Stock otherwise
contained in this Agreement.


 


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7.                                       Rights
to Negotiate Purchase.


 


Nothing
in this Agreement shall be deemed to restrict or prohibit the Company from
purchasing shares of Option Stock or the 2009 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.


 


8.                                       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.


 


9.                                       Recapitalizations,
etc.


 


The
provisions of this Agreement shall apply, to the full extent set forth herein
with respect to the Option Stock or the 2009 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 Option
Stock or the 2009 Options, by reason of any stock dividend, split, reverse
split, combination, recapitalization, liquidation, reclassification, merger,
consolidation or otherwise.


 


10.                                 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.


 


11.       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
Option Stock and the issuance of the 2009 Options to the Management Stockholder.


 


12.       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 


 


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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.


 


13.                                 Amendment


 


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


 


14.                                 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 (or if the Company
moves its corporate headquarters to another state, in the state where the
Company’s corporate headquarters is then domiciled), 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 (or if the Company moves its corporate headquarters to
another state, in the state where the Company’s corporate headquarters is then
domiciled) 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 (or if the Company moves its
corporate headquarters to another state, in the state where the Company’s
corporate headquarters is then domiciled), 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.


 


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Any
payments to enforce the Noncompete Undertaking made pursuant to this Agreement
are intended to be exempt from the requirements of Section 409A of the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations and
other applicable guidance issued thereunder (“Section 409A”) or, if not,
exempt to satisfy the requirements of Section 409A, and the provisions of
this Agreement shall be construed in a manner consistent therewith.


 


15.                                 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.


 


16.                                 Notices.


 


All
notices and other communications provided for herein shall be in writing and
shall be deemed to have been duly given if delivered to the Party to whom it is
directed as set forth in this Section 16.


 


(a)       If to the
Company by hand (whether by overnight courier or otherwise) or sent by
overnight delivery or telecopy, to it at the following address or fax number:


 


Amphenol
Corporation


358 Hall Avenue


P.O. Box 5030


Wallingford, Connecticut 06492-7530


 


Attn:
Chief Executive Officer


Phone:
(203) 265-8733


Fax:
(203) 265-8628


 


(b)       If to the Management
Stockholder by hand (whether by overnight courier or otherwise) or sent by
overnight delivery or telecopy or email, to him or her at the address
(including email address) set forth in the records of the headquarter’s Human
Resources Department of the Company; or at such other address as either Party
shall have specified by notice in writing to the other.


 


17.                                 Covenant Not to
Compete; Protection of Confidential Information; Nonsolicitation of Customers
and Suppliers and Nonsolicitation of Employees.


 


(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 provide a “Noncompete Undertaking”, which is that
the Management Stockholder shall not, in any geographic region in the world in
which the Management Stockholder acts or has acted for the Company or any
division or subsidiary thereof, directly or indirectly, engage in the
development, production, sale or distribution of any product produced, sold,
distributed or which is in development (i) by the operation of the Company
or the operation of the subsidiary of the 


 


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Company which employed the
Management Stockholder during the twelve (12) month period immediately
preceding the Management Employee’s termination of employment or (ii) by
the Company or its subsidiaries about which the Management Stockholder received
any Confidential Information (as defined below).


 


(b)                                 At the Company’s
option, if it elects to enforce the Noncompete Undertaking, in the event that
the Management Stockholder’s employment is terminated by the Management
Stockholder for Good Reason or by the operation of the Company without Cause,
or if required by applicable law to give full force and effect to the
Management Stockholder’s Noncompete Undertaking, then as additional
consideration for the Noncompete Undertaking, 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, except as required by applicable law, the
Company shall not be required to pay the Management Stockholder any additional
consideration for the Management Stockholder’s Noncompete Undertaking.


 


(c)                                  If (a) 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 or (b) in the event that the Management Stockholder’s
employment with the Company or any of its subsidiaries is terminated by the
Management Stockholder with Good Reason or by the Company without Cause and the
Company has exercised its option under the preceding subparagraph to enforce
the Noncompete Undertaking, then 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 pay the
Management Stockholder during such extended Noncompete Period in an amount
equal to 50% of the Management Stockholder’s base annual salary at the time
that the Management Stockholder’s employment with the Company was terminated.
The amounts referred to in paragraphs 17(b), if any, and 17(c) shall
be paid, commencing upon the Management Stockholder’s termination of
employment, in installments in a manner consistent with the then current salary
payment policies of the Company or the operation or division of the Company or
its subsidiary that employed the Management Stockholder; provided, however, any
amount that constitutes “deferred compensation” within the meaning of Section 409A
shall be payable only if the Management Stockholder has experienced a “separation
from service” within the meaning of Section 409A and, if the Management
Stockholder is a “specified employee” within the meaning of Section 409A
at the time of such separation from service, no payments shall be made before
the six-month anniversary of the Management Stockholder’s separation from
service, at which time all payments that would otherwise have been made during
such six-month period shall be paid to the Management Stockholder in a lump
sum. 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 or otherwise, and shall include any direct or indirect participation
in such enterprise as an employee, a consultant, independent contractor,
licensor of technology or otherwise. During the Noncompete Period and 


 


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any extended 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 or developed by the Company or its subsidiaries or that is
obtained by the Company or its subsidiaries from its customers, suppliers
and/or consultants 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)                                  In
consideration of the Company entering into this Agreement with the Management
Stockholder, the Management Stockholder hereby agrees that for a period of
twenty-four (24) months following the termination of Management
Stockholder’s employment with the Company or with a subsidiary of the Company
for any reason whatsoever, the Management Stockholder shall not, directly or
indirectly, divert or attempt to divert nor assist others in diverting any
business of the Company by soliciting, contacting or communicating with any
customer or supplier of the Company with whom Management Stockholder had direct
or indirect contact during the twelve (12) month period immediately
preceding the termination of Management Stockholder’s employment.


 


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(f)                                    In
consideration of the Company entering into this Agreement with the Management
Stockholder, the Management Stockholder hereby agrees that for a period of
twenty-four (24) months following the termination of Management
Stockholder’s employment with the Company or with a subsidiary of the Company
for any reason whatsoever, the Management Stockholder shall not, directly or
indirectly, solicit, induce, attempt to induce or assist others in attempting
to induce any employee of the Company with whom Management Stockholder has
worked or had material contact with, during the twelve (12) month period
immediately preceding the termination of his employment, to leave the
employment of the Company or a subsidiary of the Company or to accept
employment or affiliation with any other company or firm of which Management
Stockholder becomes an employee, owner, partner or consultant.


 


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


 


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