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
C
