UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 5, 2009
AMPHENOL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware |
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1-10879 |
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22-2785165 |
(State or other
jurisdiction
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(Commission File Number) |
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(IRS Employer
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358 Hall Avenue, Wallingford, Connecticut |
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06492 |
(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code (203) 265-8900
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
On November 5, 2009, Amphenol Corporation (the Company) issued and sold $600,000,000 aggregate principal amount of its 4.75% Senior Notes due 2014 (the Notes) pursuant to the Companys Registration Statement on Form S-3 (No. 333-162722), including the related Prospectus dated October 29, 2009, as supplemented by the Prospectus Supplement dated October 29, 2009. The Notes were sold in an underwritten public offering pursuant to an underwriting agreement, dated October 29, 2009, by and between the Company and Banc of America Securities LLC and J.P. Morgan Securities Inc., as representatives of the several Underwriters named in Schedule A thereto.
The Notes were sold to the public at a price of 99.813% of the principal amount, and the Company received net proceeds of approximately $594.5 million from the offering after deducting the underwriting discounts and estimated offering expenses. The Company intends to use all of the net proceeds of this offering to repay amounts outstanding under its revolving credit facility. In conjunction with the repayment, the Company expects to terminate certain interest rate swap agreements and incur a one-time charge of approximately $5 million, or $0.02 per share, relating to the cost of such termination.
The Notes were issued pursuant to an indenture dated as of November 5, 2009 (the Indenture) between the Company and The Bank of New York Mellon, as trustee (the Trustee), and certain of the terms of the Notes were established pursuant to an Officers Certificate dated November 5, 2009 (the Officers Certificate) in accordance with the Indenture. The Indenture and Officers Certificate contain certain covenants and events of default and other customary provisions.
The Notes bear interest at a rate of 4.75% per year. Interest on the Notes is payable semi-annually on May 15 and November 15 of each year, beginning on May 15, 2010. The Company will make each interest payment to the holders of record on the immediately preceding May 1 and November 1. The Notes will mature on November 15, 2014. The Company may, at its option, redeem some or all of the Notes at any time by paying a make-whole premium, plus accrued and unpaid interest, if any, to the date of repurchase. The Notes are unsecured and rank equally in right of payment with all of the Companys other unsecured senior indebtedness.
The above descriptions of the Indenture, the Officers Certificate and the Notes are qualified in their entirety by reference to the Indenture, the Officers Certificate and the Notes, which are filed as Exhibits 4.1, 4.2 and 4.3, respectively, to this Current Report on Form 8-K, and are incorporated by reference herein.
The exhibits to this Current Report on Form 8-K are hereby incorporated by reference in the Registration Statement (No. 333-162722).
Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant
The foregoing terms and conditions of the Indenture, the Officers Certificate and the Notes described in Item 1.01 of this Current Report on Form 8-K are incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits
Exhibit 1.1 |
Underwriting Agreement, dated October 29, 2009, by and between Amphenol Corporation and Banc of America Securities LLC and J.P. Morgan Securities Inc., as representatives of the several Underwriters named in Schedule A thereto, relating to the offer and sale of the Notes (filed as Exhibit 10.1 to the Form 8-K filed on November 4, 2009) |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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AMPHENOL CORPORATION |
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By: |
/s/ Diana G. Reardon |
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Diana G. Reardon |
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Senior Vice President and Chief Financial Officer |
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Date: November 5, 2009 |
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4
EXHIBIT INDEX
Exhibit No. |
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Description |
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1.1 |
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Underwriting Agreement, dated October 29, 2009, by and between Amphenol Corporation and Banc of America Securities LLC and J.P. Morgan Securities Inc., as representatives of the several Underwriters named in Schedule A thereto, relating to the offer and sale of the Notes (filed as Exhibit 10.1 to the Form 8-K filed on November 4, 2009) |
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4.1 |
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Indenture, dated as of November 5, 2009, between Amphenol Corporation and The Bank of New York Mellon, as trustee |
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4.2 |
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Officers Certificate, dated November 5, 2009, establishing the Notes pursuant to the Indenture |
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4.3 |
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Form of Global Note |
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5.1 |
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Opinion of Pillsbury Winthrop Shaw Pittman LLP regarding the legality of the Notes issued by the Company |
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23.1 |
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Consent of Pillsbury Winthrop Shaw Pittman LLP (included in Exhibit 5) |
5
EXHIBIT 4.1
INDENTURE,
dated as of November 5, 2009,
between
AMPHENOL CORPORATION
and
THE BANK OF NEW YORK MELLON , as Trustee
TABLE OF CONTENTS
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PAGE |
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
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Section 1.1 |
Definitions |
1 |
Section 1.2 |
Incorporation by Reference of Trust Indenture Act |
6 |
Section 1.3 |
Rules of Construction |
6 |
ARTICLE II THE SECURITIES |
7 |
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Section 2.1 |
Issuable in Series |
7 |
Section 2.2 |
Establishment of Terms of Securities of a Series |
7 |
Section 2.3 |
Execution and Authentication |
9 |
Section 2.4 |
Registrar and Paying Agent |
10 |
Section 2.5 |
Paying Agent to Hold Money in Trust |
11 |
Section 2.6 |
Holder Lists |
11 |
Section 2.7 |
Transfer and Exchange |
11 |
Section 2.8 |
Mutilated, Destroyed, Lost and Stolen Securities |
11 |
Section 2.9 |
Outstanding Securities |
12 |
Section 2.10 |
Treasury Securities |
13 |
Section 2.11 |
Temporary Securities |
13 |
Section 2.12 |
Cancellation |
13 |
Section 2.13 |
Defaulted Interest |
13 |
Section 2.14 |
Global Securities |
13 |
Section 2.15 |
CUSIP Numbers |
15 |
ARTICLE III REDEMPTION |
15 |
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Section 3.1 |
Notice to Trustee |
15 |
Section 3.2 |
Selection of Securities to be Redeemed |
15 |
Section 3.3 |
Notice of Redemption |
15 |
Section 3.4 |
Effect of Notice of Redemption |
16 |
Section 3.5 |
Deposit of Redemption Price |
16 |
Section 3.6 |
Securities Redeemed in Part |
16 |
ARTICLE IV COVENANTS |
16 |
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Section 4.1 |
Payment of Principal and Interest |
16 |
Section 4.2 |
Limitation on Liens |
17 |
Section 4.3 |
Limitation on Sale/Leaseback Transactions |
18 |
Section 4.4 |
Commission Reports |
19 |
Section 4.5 |
Compliance Certificate |
20 |
Section 4.6 |
Corporate Existence |
20 |
ARTICLE V SUCCESSORS |
20 |
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Section 5.1 |
When Company May Merge, Etc. |
20 |
Section 5.2 |
Successor Person Substituted |
21 |
ARTICLE VI DEFAULTS AND REMEDIES |
21 |
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Section 6.1 |
Events of Default |
21 |
Section 6.2 |
Acceleration of Maturity; Rescission and Annulment |
22 |
Section 6.3 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
23 |
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Section 6.4 |
Trustee May File Proofs of Claim |
24 |
Section 6.5 |
Trustee May Enforce Claims Without Possession of Securities |
24 |
Section 6.6 |
Application of Money Collected |
25 |
Section 6.7 |
Limitation on Suits |
25 |
Section 6.8 |
Unconditional Right of Holders to Receive Principal and Interest |
25 |
Section 6.9 |
Restoration of Rights and Remedies |
26 |
Section 6.10 |
Rights and Remedies Cumulative |
26 |
Section 6.11 |
Delay or Omission Not Waiver |
26 |
Section 6.12 |
Control by Holders |
26 |
Section 6.13 |
Waiver of Past Defaults |
26 |
Section 6.14 |
Undertaking for Costs |
27 |
ARTICLE VII TRUSTEE |
27 |
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Section 7.1 |
Duties of Trustee |
27 |
Section 7.2 |
Rights of Trustee |
29 |
Section 7.3 |
Individual Rights of Trustee |
30 |
Section 7.4 |
Trustees Disclaimer |
30 |
Section 7.5 |
Notice of Defaults |
30 |
Section 7.6 |
Reports by Trustee to Holders |
31 |
Section 7.7 |
Compensation and Indemnity |
31 |
Section 7.8 |
Replacement of Trustee |
32 |
Section 7.9 |
Successor Trustee by Merger, etc. |
32 |
Section 7.10 |
Eligibility; Disqualification |
32 |
Section 7.11 |
Preferential Collection of Claims Against Company |
33 |
ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE |
33 |
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Section 8.1 |
Option to Effect Legal Defeasance or Covenant Defeasance |
33 |
Section 8.2 |
Legal Defeasance and Discharge |
33 |
Section 8.3 |
Covenant Defeasance |
34 |
Section 8.4 |
Conditions to Legal or Covenant Defeasance |
34 |
Section 8.5 |
Satisfaction and Discharge of Indenture |
35 |
Section 8.6 |
Survival of Certain Obligations |
35 |
Section 8.7 |
Acknowledgment of Discharge by Trustee |
36 |
Section 8.8 |
Application of Trust Moneys |
36 |
Section 8.9 |
Repayment to the Company; Unclaimed Money |
36 |
Section 8.10 |
Reinstatement |
37 |
ARTICLE IX AMENDMENTS AND WAIVERS |
37 |
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Section 9.1 |
Without Consent of Holders |
37 |
Section 9.2 |
With Consent of Holders |
38 |
Section 9.3 |
Limitations |
38 |
Section 9.4 |
Compliance with Trust Indenture Act |
39 |
Section 9.5 |
Revocation and Effect of Consents |
39 |
Section 9.6 |
Notation on or Exchange of Securities |
39 |
Section 9.7 |
Trustee Protected |
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ARTICLE X MISCELLANEOUS |
39 |
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Section 10.1 |
Trust Indenture Act Controls |
39 |
Section 10.2 |
Notices |
39 |
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Section 10.3 |
Communication by Holders with Other Holders |
40 |
Section 10.4 |
Certificate and Opinion as to Conditions Precedent |
41 |
Section 10.5 |
Statements Required in Certificate or Opinion |
41 |
Section 10.6 |
Rules by Trustee and Agents |
41 |
Section 10.7 |
Legal Holidays |
41 |
Section 10.8 |
No Recourse Against Others |
41 |
Section 10.9 |
Counterparts |
41 |
Section 10.10 |
Governing Laws |
42 |
Section 10.11 |
No Adverse Interpretation of Other Agreements |
42 |
Section 10.12 |
Successors |
42 |
Section 10.13 |
Severability |
42 |
Section 10.14 |
Table of Contents, Headings, Etc. |
42 |
Section 10.15 |
Securities in a Foreign Currency |
42 |
Section 10.16 |
Judgment Currency |
43 |
Section 10.17 |
USA Patriot Act |
43 |
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND THIS INDENTURE
TIA Section |
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Indenture Section |
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Section 310 |
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(a)(1) |
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7.10 |
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(a)(2) |
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7.10 |
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(a)(3) |
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Not Applicable |
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(a)(4) |
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Not Applicable |
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(a)(5) |
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7.10 |
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(b) |
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7.10 |
Section 311 |
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(a) |
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7.11 |
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(b) |
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7.11 |
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(c) |
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Not Applicable |
Section 312 |
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(a) |
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2.6 |
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(b) |
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10.3 |
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(c) |
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10.3 |
Section 313 |
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(a) |
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7.6 |
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(b)(1) |
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7.6 |
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(b)(2) |
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7.6 |
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(c)(1) |
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7.6 |
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(d) |
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7.6 |
Section 314 |
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(a) |
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4.4, 4.5, 10.5 |
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(b) |
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Not Applicable |
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(c)(1) |
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10.4 |
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(c)(2) |
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10.4 |
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(c)(3) |
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Not Applicable |
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(d) |
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Not Applicable |
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(e) |
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10.5 |
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(f) |
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Not Applicable |
Section 315 |
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(a) |
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7.1 |
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(b) |
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7.5 |
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(c) |
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7.1 |
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(d) |
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7.1 |
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(e) |
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6.14 |
Section 316 |
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(a) |
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2.10 |
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(a)(1)(a) |
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6.12 |
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(a)(1)(b) |
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6.13 |
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(b) |
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6.8 |
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(c) |
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Not Applicable |
Section 317 |
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(a)(1) |
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6.3 |
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(a)(2) |
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6.4 |
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(b) |
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2.5 |
Section 318 |
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(a) |
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10.1 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of this Indenture.
iv
Indenture, dated as of November 5, 2009 (this Indenture ), between Amphenol Corporation , a corporation duly incorporated and existing under the laws of Delaware and having its principal executive office at 358 Hall Avenue, Wallingford, Connecticut 06492 (the Company ), and The Bank of New York Mellon, as trustee (the Trustee ) .
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture:
Section 1.1 Definitions .
Additional Amounts means any additional amounts that are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified herein or therein and that are owing to such Holders.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, control (including, with correlative meanings, the terms controlled by and under common control with ), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities or by agreement or otherwise.
Agent means any Registrar, Paying Agent or Service Agent.
Attributable Debt means, when used in connection with a Sale/Leaseback Transaction, on any date as of which the amount of Attributable Debt is to be determined, the product of (a) the net proceeds from the Sale/Leaseback Transaction multiplied by (b) a fraction, the numerator of which is the number of full years of the term of the lease relating to the property involved in the Sale/Leaseback Transaction (without regard to any options to renew or extend such term) remaining on the date of the making of the computation, and the denominator of which is the number of full years of the term of the lease measured from the first day of the term.
Bankruptcy Law has the meaning set forth in Section 6.1 .
Board of Directors means the Board of Directors of the Company or any duly authorized committee thereof.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.
Business Day means, unless otherwise provided by a Board Resolution, an Officers Certificate or a Supplemental Indenture for the Securities of a particular Series, a day that is not, in New York City, a Saturday, Sunday, a legal holiday or a day on which banking institutions are authorized or obligated by law to close .
Capital Stock of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock and limited liability or partnership interests (whether general or limited), but excluding any debt securities convertible into such equity .
Commission means the Securities and Exchange Commission or any successor agency.
Company means the party named as such above until a successor replaces it and thereafter means such successor.
Company Order means a written order signed in the name of the Company by two Officers, one of whom must be the Companys principal executive officer, principal financial officer or principal accounting officer.
Company Request means a written request or order signed in the name of the Company, as the case may be, by (a) the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer, the President or a Vice President and by the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, as the case may be, or (b) any two Persons designated in a Company Order previously delivered to the Trustee by any two of the foregoing officers .
Consolidated Net Tangible Assets means the aggregate amount of assets included on the Companys consolidated balance sheet as of the most recent fiscal quarter end for which such consolidated balance sheet is available, after deducting therefrom (a) all current liabilities, except for current maturities of long-term debt and current maturities of obligations under capital leases, and (b) total goodwill and other intangible assets, all as set forth on the most recent consolidated balance sheet of the Company and its consolidated Subsidiaries and computed in accordance with GAAP.
Corporate Trust Office means the designated office of the Trustee at which at any particular time its corporate trust business shall be administered, which office of The Bank of New York Mellon, at the date of the execution of this Indenture, is located at 101 Barclay Street, 8th Floor West, New York, New York 10286, Attention: Global Corporate Trust, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company) .
Covenant Defeasance has the meaning set forth in Section 8.3 .
Custodian has the meaning set forth in Section 6.1 .
Default means any event that is, or after notice or passage of time or both would be, an Event of Default.
Depositary means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the Person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such Person, Depositary as used with respect to the Securities of any Series shall mean the Depositary with respect to the Securities of such Series.
2
Discount Security means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2 .
Dollars and $ means the currency of The United States of America.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Event of Default has the meaning set forth in Section 6.1 .
Foreign Currency means any currency or currency unit issued by a government other than the government of The United States of America.
Foreign Government Obligations means, with respect to Securities of any Series that are denominated in a Foreign Currency, (a) direct obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by or acting as an agency or instrumentality of such government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in the case of either clause (a) or (b), are not callable or redeemable at the option of the issuer thereof.
GAAP means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect as of the date of determination.
Global Security means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of the Securities of a particular Series, issued to the Depositary for such Series or its nominee, and registered in the name of such Depositary or nominee.
Holder means a Person in whose name a Security is registered.
Indebtedness means, with respect to any Person, obligations (other than Nonrecourse Obligations) of such Person for borrowed money or evidenced by bonds, debentures, notes or similar instruments.
Indenture means this Indenture as amended or supplemented from time to time, subject to Section 10.1 , and shall include the form and terms of the Securities of a particular Series established as contemplated hereunder.
interest with respect to any Discount Security that by its terms bears interest only after Maturity means interest payable after Maturity.
Judgment Currency has the meaning set forth in Section 10.16 .
Legal Defeasance has the meaning set forth in Section 8.2 .
Legal Holiday has the meaning set forth in Section 10.7 .
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Market Exchange Rate has the meaning set forth in Section 10.15 .
Maturity when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity, upon redemption or required repurchase , by declaration of acceleration or otherwise.
Mortgage has the meaning set forth in Section 4.2(a) .
New York Banking Day has the meaning set forth in Section 10.16 .
Nonrecourse Obligation means indebtedness or other obligations substantially related to (a) the acquisition of assets not previously owned by the Company or any Restricted Subsidiary or (b) the financing of a project involving the development or expansion of properties of the Company or those of any Restricted Subsidiary, as to which the obligee with respect to such indebtedness or obligation has no recourse to the Company or any Restricted Subsidiary or any assets of the Company or those of any Restricted Subsidiary other than the assets that were acquired with the proceeds of such transaction or the project financed with the proceeds of such transaction (and the proceeds thereof).
Officer means the Chief Executive Officer, the President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.
Officers Certificate means a certificate signed by two Officers, one of whom must be the Companys principal executive officer, principal financial officer or principal accounting officer.
Opinion of Counsel means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.
Paying Agent has the meaning set forth in Section 2.4 .
Person means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or political subdivision thereof .
principal of a Security means the principal of such Security plus, when applicable, the premium, if any, on, and any Additional Amounts in respect of, such Security.
Principal Property means the land, land improvements, buildings (to the extent they constitute real property interests and including any leasehold interest therein) and fixtures (including, for the avoidance of doubt, all machinery and equipment) constituting the principal corporate office, any manufacturing plant or any manufacturing facility (whether now owned or hereafter acquired) that:
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Registrar has the meaning set forth in Section 2.4 .
Required Currency has the meaning set forth in Section 10.16 .
Responsible Officer means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee having direct responsibility for the administration of this Indenture or any other officer to whom any corporate trust matter is referred because of such Persons knowledge of and familiarity with the particular subject .
Restricted Subsidiary means any of the Companys direct or indirect Subsidiaries that owns any Principal Property; provided, however , that the term Restricted Subsidiary does not include (a) any such Subsidiary that is principally engaged in leasing or in financing receivables or that is principally engaged in financing outside the United States of America the Companys operations or those of its Subsidiaries or (b) any such Subsidiary less than 80% of the Voting Stock of which is owned, directly or indirectly, by the Company, by one or more of the Companys other Subsidiaries or by the Company and one or more of the Companys other Subsidiaries if the common stock of such Subsidiary is traded on any national securities exchange or in the over-the-counter market.
Sale/Leaseback Transaction has the meaning set forth in Section 4.3(a) .
Securities means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
Series or Securities of a Series means the debentures, notes or other debt instruments of the Company of a particular series created pursuant to Sections 2.1 and 2.2 .
Service Agent has the meaning set forth in Section 2.4 .
Stated Maturity means when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of such Person .
Supplemental Indenture means any instrument that supplements this Indenture as contemplated hereunder.
TIA means the Trust Indenture Act of 1939 as in effect on the date of this Indenture; provided, however , that in the event the Trust Indenture Act of 1939 is amended after such date, TIA means, to the extent required by any such amendment, the Trust Indenture Act as so amended.
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Trustee means the Person named as the Trustee in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Trustee shall mean each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, Trustee as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of such Series.
U.S. Government Obligations means securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, and that in either case of (a) or (b), are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depository receipt.
Voting Stock of a Person means all classes of any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock and limited liability or partnership interests (whether general or limited), but excluding any debt securities convertible into such equity, to the extent then outstanding and normally entitled to vote in the election of such Persons directors, managers or trustees, as applicable.
Section 1.2 Incorporation by Reference of Trust Indenture Act . Whenever this Indenture refers to a provision of the TIA, such provision is incorporated by reference in and made a part of this Indenture. The following terms that are defined in the TIA and used in this Indenture have the following meanings: (a) indenture securities means the Securities; (b) indenture security holder means a Holder; (c) indenture to be qualified means this Indenture; (d) indenture trustee or institutional trustee means the Trustee; and (e) obligor on the indenture securities means the Company and any successor obligor upon the Securities. All other terms used in this Indenture that are defined in the TIA or a rule thereunder or by the TIAs reference to another statute that are not otherwise defined herein are used herein as so defined.
Section 1.3 Rules of Construction . Unless the context otherwise requires:
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Section 2.1 Issuable in Series . The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution, an Officers Certificate or a Supplemental Indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, such Board Resolution, Officers Certificate or Supplemental Indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Securities of a particular Series shall be equally and ratably entitled to the benefits of the Indenture.
Section 2.2 Establishment of Terms of Securities of a Series . At or prior to the issuance of any Securities within a Series, the following shall be established (as to such Series generally, in the case of Section 2.2(a) , and either as to the Securities within such Series or as to such Series generally, in the case of Sections 2.2(b) through 2.2(w) ) pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, an Officers Certificate or a Supplemental Indenture:
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All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided in the Board Resolution, Officers Certificate or Supplemental Indenture referred to above. The authorized principal amount of any Series may not be increased to provide for issuances of additional Securities of such Series, unless otherwise provided in the Board Resolution, Officers Certificate or Supplemental Indenture.
Section 2.3 Execution and Authentication . Two Officers shall sign the Securities for the Company by manual or facsimile signature.
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Section 2.4 Registrar and Paying Agent . The Company shall maintain, with respect to the Securities of each Series, at the place or places established with respect to Securities of such Series pursuant to Section 2.2(f) , an office or agency where Securities of such Series may be presented or surrendered for payment ( Paying Agent ), where Securities of such Series may be surrendered for registration of transfer or exchange ( Registrar ) and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be served ( Service Agent ). The Registrar shall keep a register with respect to the Securities of each Series and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more co-registrars, additional paying agents or additional service agents and may from time to time rescind such designations; provided, however , that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant to Section 2.2(f) for Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional service agent. The
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term Registrar includes any co-registrar; the term Paying Agent includes any additional paying agent; and the term Service Agent includes any additional service agent.
The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is appointed prior to the time Securities of such Series are first issued.
Section 2.5 Paying Agent to Hold Money in Trust . The Company shall require each Paying Agent, if other than the Trustee, to agree in writing that the Paying Agent will hold in trust, for the benefit of Holders of the Securities of any Series, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Securities of such Series, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust account for the benefit of Holders of the Securities of any Series all money held by it as Paying Agent.
Section 2.6 Holder Lists . The Trustee shall preserve, in as current a form as is reasonably practicable, the most recent list available to it of the names and addresses of Holders of the Securities of each Series and shall otherwise comply with Section 312(a) of the TIA. If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders of the Securities of each Series.
Section 2.7 Transfer and Exchange . Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if the requirements for such transactions are met. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder to furnish appropriate endorsements and transfer documents. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrars request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company or the Trustee may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Section 2.11 , Section 3.6 or Section 9.6 ).
Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of business fifteen days immediately preceding the mailing of a notice of redemption of Securities of such Series selected for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part.
Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities . If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and make
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available for delivery in exchange therefor a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such security or indemnity as may be required by each of them to hold each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser (within the meaning of the Uniform Commercial Code as in effect in the jurisdiction in which the Company is organized) , the Company shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 2.8 , the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section 2.8 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of such Series duly issued hereunder.
The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9 Outstanding Securities . The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it pursuant to Section 2.12 , those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section 2.9 as not outstanding.
If a Security is replaced pursuant to this Section 2.9 , it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a protected purchaser.
If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on that date, then on and after that date, the Securities of such Series cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
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In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2 .
Section 2.10 Treasury Securities . In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver, only Securities of a Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Section 2.11 Temporary Securities . Until definitive Securities are ready for delivery, the Company may prepare and the Trustee upon request shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12 Cancellation . The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation in accordance with its customary procedures and, if requested in writing by the Company, deliver such canceled Securities to the Company or as it otherwise directs; provided, however , that the Trustee shall not be required to destroy Securities. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13 Defaulted Interest . If the Company defaults in a payment of interest on the Securities of any Series, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the Persons who are Holders of the Securities of such Series on a subsequent special record date. The Company shall fix the record date and payment date. At least ten days before the record date, the Company shall mail to the Trustee and to each Holder of such Series a notice that states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14 Global Securities .
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This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depositary or a nominee of the Depositary. This Security is exchangeable for Securities registered in the name of a Person other than the Depositary or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
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Section 2.15 CUSIP Numbers . The Company in issuing the Securities may use CUSIP numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided, however , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any change in CUSIP numbers of which the Company becomes aware.
Section 3.1 Notice to Trustee . The Company may, with respect to the Securities of any Series, reserve the right to redeem and pay the Securities of such Series or may covenant to redeem and pay the Securities of such Series or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in the Securities of such Series. If the Securities of any Series are redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Securities of such Series pursuant to the terms of the Securities of such Series, it shall notify the Trustee of the date of such redemption and the principal amount of the Securities of such Series to be redeemed. The Company shall give the notice at least 45 days before the date of such redemption (or such shorter notice as may be acceptable to the Trustee).
Section 3.2 Selection of Securities to be Redeemed . Unless otherwise indicated for the Securities of a particular Series by a Board Resolution, an Officers Certificate or a Supplemental Indenture, if less than all the Securities of a Series are to be redeemed, the Trustee shall, not less than 30 nor more than 60 days prior to the date of redemption, select the Securities of such Series to be redeemed in any manner that the Trustee deems fair and appropriate. The Trustee shall make the selection from Securities of such Series outstanding not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities of such Series that have denominations larger than $2,000. Securities of such Series and portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or, if the Securities of such Series are issuable in other denominations pursuant to Section 2.2(j) , the minimum principal denomination for the Securities of such Series and integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of such Series called for redemption.
Section 3.3 Notice of Redemption . Unless otherwise indicated for a particular Series by Board Resolution, an Officers Certificate or a Supplemental Indenture, at least 30 days but not more than 60 days before any date of redemption of the Securities of any Series, the Company shall mail a notice of redemption by first-class mail to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities of such Series to be redeemed and shall state:
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Subject to Section 3.1 , at the Companys written request, the Trustee shall give the notice of redemption in the Companys name and at its expense.
Section 3.4 Effect of Notice of Redemption . Once notice of redemption is mailed or published as provided in Section 3.3 , Securities of a Series called for redemption become due and payable on the date of such redemption and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the date of such redemption; provided, however , that installments of interest whose Stated Maturity is on or prior to the date of such redemption shall be payable to the Holders of such Securities (or one or more predecessor Securities) registered at the close of business on the relevant record date therefor according to their terms and the terms of this Indenture.
Section 3.5 Deposit of Redemption Price . On or before 10:00 a.m., New York City time, on the date of such redemption, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6 Securities Redeemed in Part . Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered.
Section 4.1 Payment of Principal and Interest . The Company covenants and agrees for the benefit of the Holders of the Securities of each Series that it will duly and punctually pay the principal of and interest, if any, on the Securities of such Series in accordance with the terms of the Securities of such Series and this Indenture.
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Section 4.2 Limitation on Liens .
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Section 4.5 Compliance Certificate . The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officers Certificate stating whether or not to the knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions hereof (without regard to any period of grace or requirement of notice provided hereunder), and if a Default or Event of Default shall have occurred, specifying all such Defaults or Events of Default and the nature and status thereof of which they may have knowledge.
The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, within 30 days after becoming aware of any Default or Event of Default, an Officers Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
Section 4.6 Corporate Existence . Except as otherwise permitted by Article V, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
ARTICLE V
SUCCESSORS
Section 5.1 When Company May Merge, Etc. The Company shall not consolidate with, or sell, lease, convey or otherwise transfer all or substantially all of the Companys assets to, or merge with or into, any other Person or entity, unless:
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Section 5.2 Successor Person Substituted . Upon any consolidation of the Company with, or merger by the Company into, any other Person or sale, conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 5.1 , the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease of all or substantially all of the Companys assets, the predecessor Person shall not be relieved from its obligation to pay the principal of and interest on the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default . The term Event of Default , wherever used herein with respect to the Securities of any Series, means any one of the following events, unless in the Board Resolution, Officers Certificate or Supplemental Indenture establishing the Securities of such Series, it is provided that the Securities of such Series shall not have the benefit of such Event of Default:
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The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
The term Bankruptcy Law means Title 11 of the U.S. Code or any similar federal or state law for the relief of debtors. The term Custodian means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Section 6.2 Acceleration of Maturity; Rescission and Annulment . If an Event of Default with respect to Securities of any Series outstanding at the time such Even of Default occurs and is continuing (other than an Event of Default referred to in Section 6.1(e) or 6.1(f) ), then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the outstanding Securities of such Series may declare the entire principal amount (or, if any Securities of such Series are Discount Securities, such portion of the principal amount as may be specified in the terms of the Securities of such Series) of and accrued but unpaid interest, if any, on all of the Securities of such Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued but unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 6.1(e) or 6.1(f) shall occur, the principal amount (or specified amount) of and accrued but unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
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At any time after such a declaration of acceleration with respect to the Securities of any Series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article VI, the Holders of a majority in principal amount of the outstanding Securities of such Series, by written notice to the Company and the Trustee, may rescind and annul such declaration with respect to the Securities of such Series and its consequences if:
Section 6.3 Collection of Indebtedness and Suits for Enforcement by Trustee . The Company covenants that if:
then the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4 Trustee May File Proofs of Claim . In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7 .
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.5 Trustee May Enforce Claims Without Possession of Securities . All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of
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the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 6.6 Application of Money Collected . Any money collected by the Trustee pursuant to this Article VI shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
Section 6.7 Limitation on Suits . No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
it being understood and intended that no one or more of such Holders shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 6.8 Unconditional Right of Holders to Receive Principal and Interest . Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any,
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on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the date of such redemption) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 6.9 Restoration of Rights and Remedies . If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.10 Rights and Remedies Cumulative . Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8 , no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver . No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Control by Holders . The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that:
Section 6.13 Waiver of Past Defaults . Subject to Section 6.2 , the Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except a default (i) in the payment of the principal of or interest on any Security of
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such Series ( provided, however , that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind and annul a declaration of acceleration and its consequences, including any default in such payment that has become due solely by such declaration of acceleration) or (ii) in respect of a covenant or provision hereof that cannot be modified or amended without the consent of the Holder of each outstanding Security of such Series affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14 Undertaking for Costs . All parties to this Indenture agree, and each Holder of any Security by such Holders acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.14 shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the date of such redemption).
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee .
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Section 7.2 Rights of Trustee .
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Section 7.3 Individual Rights of Trustee . The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11 .
Section 7.4 Trustees Disclaimer . The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Companys use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication.
Section 7.5 Notice of Defaults . If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and a Responsible Officer of the Trustee has notice thereof, the Trustee shall mail to each Holder of the Securities of such Series notice of such Default
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or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has notice of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on any Security of any Series, the Trustee may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders of such Series.
Section 7.6 Reports by Trustee to Holders . Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all Holders, as their names and addresses appear on the register kept by the Registrar, a brief report dated as of such May 15, in accordance with, and to the extent required under, Section 313 of the TIA.
A copy of each report at the time of its mailing to Holders of any Series shall be filed with the Commission and each stock exchange on which the Securities of such Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange.
Section 7.7 Compensation and Indemnity . The Company shall pay to the Trustee from time to time compensation for its services as the Company and the Trustee shall from time to time agree upon in writing. The Trustees compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustees agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor Trustee (including the cost of defending itself) against any loss, liability or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through negligence or bad faith.
To secure the Companys payment obligations in this Section 7.7 , the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of such Series.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(e) or 6.1(f) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section 7.7 shall survive the resignation or removal of the Trustee and the termination or satisfaction of this Indenture.
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Section 7.8 Replacement of Trustee . A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustees acceptance of appointment as provided in this Section 7.8 .
The Trustee may resign with respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to such Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the applicable Series may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7 , the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to the Securities of each Series for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to each Holder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8 , the Companys obligations under Section 7.7 shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it prior to such replacement.
Section 7.9 Successor Trustee by Merger, etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification . This Indenture shall always have a Trustee who satisfies the requirements of Section 310(a)(1), 310(a)(2) and 310(a)(5) of the TIA. The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with Section 310(b) of the TIA.
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Section 7.11 Preferential Collection of Claims Against Company . The Trustee is subject to Section 311(a) of the TIA, excluding any creditor relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the TIA to the extent indicated.
Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance . The Company may, at its option evidenced by a Board Resolution or an Officers Certificate, at any time, with respect to the Securities of any Series, elect to have either Section 8.2 or 8.3 be applied to all of the outstanding Securities of such Series upon compliance with the conditions set forth below in this Article VIII.
Section 8.2 Legal Defeasance and Discharge . Upon the Companys exercise under Section 8.1 of the option applicable to this Section 8.2 , the Company shall be deemed to have been discharged from its obligations with respect to all of the outstanding Securities of the particular Series on the date the conditions set forth below in Section 8.4 are satisfied ( Legal Defeasance ). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged all the obligations relating to, and to have satisfied all of its obligations under, the outstanding Securities of such Series and this Indenture and cured all then existing Events of Default (and the Trustee, on written demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except that the following shall survive until otherwise terminated or discharged hereunder (and the Securities of such Series shall thereafter be deemed to be outstanding only for the purposes of the Sections of this Indenture referred to below in this Section 8.2 ):
Subject to compliance with this Article VIII, the Company may exercise its option under this Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 with respect to the Securities of any Series. Following such Legal Defeasance, payment of the Securities of such Series may not be accelerated because of an Event of Default.
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Section 8.3 Covenant Defeasance . Upon the Companys exercise under Section 8.1 of the option applicable to this Section 8.3 , the Company shall be released from any obligations under the covenants contained in Sections 2.2(s) , 4.2 , 4.3 , 4.4 , 4.5 and 5.1 with respect to the outstanding Securities of a particular Series, along with any additional covenants contained in such Security, any Supplemental Indenture or Officers Certificate in connection therewith, on and after the date the conditions set forth below in Section 8.4 are satisfied ( Covenant Defeasance ), and the Securities of such Series shall thereafter be deemed not outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed outstanding for all other purposes hereunder (it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Securities of such Series appertaining thereto, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document but, except as specified above, the remainder of this Indenture and the Securities of such Series shall be unaffected thereby. Following such Covenant Defeasance, payment of the Securities of such Series may not be accelerated because of an Event of Default pursuant to Section 6.1(c) (except for a default with respect to Section 5.1 ), 6.1(d) or 6.1(g) .
Section 8.4 Conditions to Legal or Covenant Defeasance . As set forth below, the following shall be the conditions to the application of either Section 8.2 or 8.3 to the outstanding Securities of any Series:
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Section 8.5 Satisfaction and Discharge of Indenture . This Indenture will, upon Company Request, be discharged and will cease to be of further effect as to all of the Securities of a particular Series issued hereunder when either: (a) all of the Securities of such Series theretofore authenticated and delivered (except (i) lost, stolen or destroyed Securities that have been replaced or paid as provided in Section 2.8 and (ii) the Securities for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company or discharged from such trust, as provided in the last paragraph of Section 8.9 ) have been delivered to the Trustee for cancellation; or (b) (i) all of the Securities of such Series not theretofore delivered to the Trustee for cancellation are due and payable by their terms within one year or have become due and payable by reason of the making of a notice of redemption and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of cash in any combination of currency or currency unit in which the Securities of such Series are payable, U.S. Government Obligations, or a combination thereof in such amounts as will be sufficient to pay and discharge the entire indebtedness on the Securities of such Series not theretofore delivered to the Trustee for cancellation for principal and accrued but unpaid interest, if any, to Maturity or the date of such redemption, as the case may be, (ii) the Company has paid, or caused to be paid, all sums payable by it under this Indenture and (iii) the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Securities of such Series at the Stated Maturity or the date of such redemption, as the case may be. In addition, in the case of clause (a) or (b) above, the Company must deliver an Officers Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Section 8.6 Survival of Certain Obligations . Notwithstanding the satisfaction and discharge of this Indenture and of the Securities of any Series referred to in Section 8.1 , 8.2 , 8.4 , or 8.5 , the respective obligations of the Company and the Trustee under Sections 2.3 , 2.5 , 2.6 , 2.7 , 2.8 , 2.12 , 6.8 , 8.7 , 8.8 , 8.9 and 8.10 and Article VII shall survive with respect to the Securities of such Series until the Securities of such Series are no longer outstanding, and thereafter the obligations of
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the Company and the Trustee under Sections 8.7 , 8.8 , 8.9 and 8.10 shall survive. Nothing contained in this Article VIII shall abrogate any of the obligations or duties of the Trustee under this Indenture.
Section 8.7 Acknowledgment of Discharge by Trustee . Subject to Section 8.10 , after (a) the conditions of Section 8.4 or 8.5 have been satisfied with respect to the Securities of any Series, (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company and (c) the Company has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent referred to in clause (a) above relating to the satisfaction and discharge of this Indenture have been complied with, the Trustee upon written request shall acknowledge in writing the discharge of all of the Companys obligations under this Indenture except for those surviving obligations specified in this Article VIII.
Section 8.8 Application of Trust Moneys . All money and U.S. Government Obligations deposited with the Trustee pursuant to Section 8.4 or 8.5 in respect of the Securities of such Series shall be held in trust and applied by it, in accordance with the provisions of the Securities of such Series and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of the Securities of such Series of all sums due and to become due thereon for principal and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 8.4 or 8.5 with respect to the Securities of such Series or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account of the Holders of the outstanding Securities of such Series.
Section 8.9 Repayment to the Company; Unclaimed Money . The Trustee and any Paying Agent for the Securities of any Series shall promptly pay or return to the Company upon Company Order any cash or U.S. Government Obligations held by them at any time that are not required for the payment of the principal of and interest, if any, on the Securities of such Series for which cash or U.S. Government Obligations have been deposited pursuant to Section 8.4 or 8.5 .
Any money deposited with the Trustee or any Paying Agent for the Securities of any Series, or then held by the Company, in trust for the payment of the principal of and interest, if any, on the Security of any Series and remaining unclaimed for two years after such principal and interest, if any, has become due and payable shall, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be paid to the Company on Company Request or (if then held by the Company) shall be discharged from such trusts; and the Holder of any such Security shall, thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment may give written notice to the Holder of such Security, that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such written notice, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be repaid to the Company, as the case may be.
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Section 8.10 Reinstatement . If the Trustee or Paying Agent for the Securities of any Series is unable to apply any cash or U.S. Government Obligations, as applicable, in accordance with Section 8.2 , 8.3 , 8.4 or 8.5 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Companys obligations under this Indenture and the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2 , 8.3 , 8.4 or 8.5 until such time as the Trustee or Paying Agent for the Securities of such Series is permitted to apply all such cash or U.S. Government Obligations in accordance with Section 8.2 , 8.3 , 8.4 or 8.5 ; provided, however , that if the Company has made any payment of principal and interest, if any, on any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the cash or U.S. Government Obligations, as applicable, held by the Trustee or Paying Agent.
Section 9.1 Without Consent of Holders . The Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Holder:
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Section 9.2 With Consent of Holders . The Company and the Trustee may enter into a Supplemental Indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such Supplemental Indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any Supplemental Indenture or of modifying in any manner the rights of the Holders of the Securities of such Series. Except as provided in Section 6.13 , the Holders of at least a majority in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive any past Default or compliance by the Company with any provision of this Indenture or the Securities of such Series.
It shall not be necessary for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed Supplemental Indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a Supplemental Indenture or waiver under this Section 9.2 becomes effective, the Company shall mail to the Holders of Securities affected thereby a notice briefly describing such Supplemental Indenture or waiver. Any failure by the Company to mail or publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such Supplemental Indenture or waiver.
Section 9.3 Limitations . Without the consent of each Holder affected, an amendment or waiver may not:
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Section 9.4 Compliance with Trust Indenture Act . Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a Supplemental Indenture that complies with the TIA as then in effect.
Section 9.5 Revocation and Effect of Consents . Until an amendment is set forth in a Supplemental Indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holders Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to such Holders Security or portion of a Security if the Trustee receives the notice of revocation before the date of such Supplemental Indenture or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind every Holder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through (g) of Section 9.3 . In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holders Security.
Section 9.6 Notation on or Exchange of Securities . The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities of such Series may issue and the Trustee shall authenticate upon request new Securities of such Series that reflect the amendment or waiver.
Section 9.7 Trustee Protected . In executing, or accepting the additional trusts created by, any Supplemental Indenture permitted by this Article IX or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, in addition to the documents required by Section 10.4 , and (subject to Section 7.1 ) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such Supplemental Indenture is authorized or permitted by this Indenture. The Trustee shall sign all Supplemental Indentures, except that the Trustee need not sign any Supplemental Indenture that adversely affects its rights.
Section 10.1 Trust Indenture Act Controls . If any provision of this Indenture limits, qualifies or conflicts with another provision that is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.
Section 10.2 Notices . Any notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in Person or mailed by first-class mail:
Amphenol Corporation
358 Hall Avenue
Wallingford, Connecticut 06492
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Attention: Treasurer
Facsimile: (203) 265-8628
with a copy to:
Amphenol Corporation
358 Hall Avenue
Wallingford, Connecticut 06492
Attention: General Counsel
Facsimile: (203) 265-8827
and
Pillsbury Winthrop Shaw Pittman
1540 Broadway
New York, New York 10036
Attention: Ronald A. Fleming, Jr.
Facsimile: (212) 298-9931
(b) if to the Trustee :
The Bank of New York Mellon
101 Barclay Street
8th Floor West
New York, New York 10286
Attention: Global Corporate Trust
Facsimile: ( 732) 667-9183
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Holder shall be mailed by first-class mail to such Holders address as shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder of any Series or any defect in it shall not affect its sufficiency with respect to other Holders of that or any other Series.
If a notice or communication is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Holder receives it.
If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3 Communication by Holders with Other Holders . Holders of any Series may communicate pursuant to Section 312(b) of the TIA with other Holders of such Series or any other Series with respect to their rights under this Indenture or the Securities of such Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the TIA.
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Section 10.4 Certificate and Opinion as to Conditions Precedent . Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
Section 10.5 Statements Required in Certificate or Opinion . Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 314(a)(4) of the TIA) shall comply with the provisions of Section 314(e) of the TIA and shall include:
Section 10.6 Rules by Trustee and Agents . The Trustee may make reasonable rules for action by or a meeting of Holders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.7 Legal Holidays . Unless otherwise provided by Board Resolution, Officers Certificate or Supplemental Indenture for a particular Series, a Legal Holiday is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8 No Recourse Against Others . A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 10.9 Counterparts . This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
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Section 10.10 Governing Laws . THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.11 No Adverse Interpretation of Other Agreements . This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.12 Successors . All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13 Severability . In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14 Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.15 Securities in a Foreign Currency . Unless otherwise specified in a Board Resolution, an Officers Certificate or a Supplemental Indenture delivered pursuant to Section 2.2 with respect to the Securities of a particular Series, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action at the time outstanding and, at such time, there are outstanding Securities of any Series that are denominated in a coin or currency other than Dollars, then the principal amount of Securities of such Series that shall be deemed to be outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section 10.15 , Market Exchange Rate shall mean the noon Dollar buying rate in New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York. If such Market Exchange Rate is not available for any reason with respect to such currency, the Company shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in The City of New York or in the country of issue of the currency in question or such other quotations as the Company shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Company regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all purposes and irrevocably binding upon all Holders.
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Section 10.16 Judgment Currency . The Company agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the Required Currency ) into a currency in which a judgment will be rendered (the Judgment Currency ), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with clause (a) above), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, New York Banking Day means any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required by law, regulation or executive order to close.
Section 10.17 USA Patriot Act . The parties hereto acknowledge that, in accordance with Section 326 of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (as amended, modified or supplemented from time to time, the USA Patriot Act), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Indenture agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the USA Patriot Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and attested, all as of the day and year first above written.
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AMPHENOL CORPORATION |
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By: |
/s/ Diana G. Reardon |
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Name: Diana G. Reardon |
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Title: Senior Vice President and |
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Chief Financial Officer |
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THE BANK OF NEW YORK MELLON , as Trustee |
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By: |
/s/ Timothy W. Casey |
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Name: Timothy W. Casey |
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Title: Senior Associate |
EXHIBIT 4.2
AMPHENOL CORPORATION
OFFICERS CERTIFICATE
Pursuant to Section 2.2 of the Indenture
Reference is made to the Indenture (the Indenture ), dated as of November 5, 2009, between Amphenol Corporation, a Delaware corporation (the Company ), and The Bank of New York Mellon, as trustee (the Trustee ) . Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Indenture.
Pursuant to Section 2.2 of the Indenture, the Company hereby certifies, through its Treasurer, David Jositas, and its Secretary, Edward C. Wetmore, as follows:
(i) 100% of the principal amount of the Notes to be redeemed; and
(ii) the sum of the present values of the Remaining Scheduled Payments (as defined below) of the Notes being redeemed, discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below), plus 35 basis points,
plus, in each case of clauses (i) and (ii) of this Section 2(g), accrued interest thereon to the date of redemption.
If the date of redemption is on or after an Interest Record Date and on or before the related Interest Payment Date, the accrued and unpaid interest, if any, shall be paid to the Person in whose name the Note is registered at the close of business on such Interest Record Date, and no additional interest shall be payable to Holders whose Notes will be subject to redemption by the Company.
For purposes of this Section 2(g), the following terms have the following meanings:
Comparable Treasury Issue means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes.
Comparable Treasury Price means, with respect to any date of redemption, (a) the average of the Reference Treasury Dealer Quotations for such redemption
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date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (b) if fewer than four such Reference Treasury Dealer Quotations are provided to the Trustee, the average of all such quotations.
Independent Investment Banker means the Reference Treasury Dealer appointed by the Company.
Reference Treasury Dealer means each of Banc of America Securities LLC, J.P. Morgan Securities Inc., Deutsche Bank Securities Inc., a Primary Treasury Dealer (as defined herein) selected by Wells Fargo Securities, LLC and their respective successors, provided , however , that if any of the foregoing ceases to be a primary U.S. Government securities dealer in New York City (a Primary Treasury Dealer ), the Company shall substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealers selected by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any date of redemption, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue for the Notes (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that date of redemption.
Remaining Scheduled Payments means, with respect to each Note to be redeemed, the remaining scheduled payments of the principal (or of the portion) thereof and interest thereon that would be due after the related date of redemption therefor but for such redemption; provided , however , that, if that date of redemption is not an Interest Payment Date with respect to such Note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to that date of redemption.
Treasury Rate means, with respect to any date of redemption, the rate per annum equal to the semi-annual equivalent yield to maturity, computed as of the second Business Day immediately preceding that date of redemption, of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that date of redemption.
Notice of any redemption shall be mailed at least 30 days but not more than 60 days before the date of redemption to each Holder of Notes to be redeemed. If less than all the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee by such method as the Trustee deems fair and appropriate. Unless the Company defaults in payment of the redemption price, on and after the date of redemption, interest shall cease to accrue on the Notes or portions thereof called for redemption.
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(i) that such Change of Control Repurchase Event has occurred or is pending and that such Holder has the right to require the Company to repurchase such Holders Notes at a purchase price in cash equal to 101% of the principal amount of the Notes plus accrued and unpaid interest, if any, to, but not including, the date of repurchase (subject to the right of Holders of record on the relevant Interest Record Date to receive interest due on the relevant Interest Payment Date) (the Change of Control Payment );
(ii) if such notice is mailed prior to the date of consumption of the Change of Control, that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iii) the date of repurchase (which shall be no earlier than 30 days nor later than 60 days from the date the Change of Control Offer is mailed) (the Change of Control Payment Date ); and
(iv) the procedures determined by the Company, consistent with the Indenture, that a Holder must follow in order to have its Notes repurchased.
On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions of Notes (equal to $2,000 and integral multiples of $1,000 in excess thereof) properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes so tendered; and
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(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased by the Company and, to the extent applicable, an executed new note or notes evidencing any unpurchased portion of any Note or Notes surrendered for which the Trustee shall be required to authenticate and deliver a new note or notes as provided below.
The Trustee shall promptly mail, or shall cause the Paying Agent to promptly mail , to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new note equal in principal amount to any unpurchased portion of the Notes surrendered, if any, provided that each such new note shall be in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof.
If the Change of Control Payment Date is on or after an Interest Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, shall be paid to the Person in whose name the Note is registered at the close of business on such Interest Record Date, and no additional interest shall be payable to Holders who tender pursuant to the Change of Control Offer.
The Company shall not be required to make the Change of Control Offer upon a Change of Control Repurchase Event if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to the Change of Control Offer to be made by the Company and repurchases all Notes validly tendered and not withdrawn under such offer.
The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the Exchange Act ), and any other securities laws or regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions in this Section 2(i), the Company shall comply with those securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Offer provisions in this Section 2(i) by virtue of any such conflict.
For purposes of this Section 2(i), the following terms have the following meanings:
Change of Control means:
· the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any
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person (as such term is used in Sections 13(d)(3) of the Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such person shall be deemed to have beneficial ownership of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total voting power of the Companys Voting Stock (or the Companys successor by merger, consolidation or purchase of all or substantially all of its assets) (for the purposes of this Section 2(i), such person shall be deemed to beneficially own any of the Companys Voting Stock held by a parent entity, if such person beneficially owns (as defined above), directly or indirectly, more than a majority of the voting power of the Voting Stock of such parent entity); or
· the Company consolidates with, or merges with or into, any person, or any person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Companys outstanding Voting Stock or outstanding Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Companys Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person immediately after giving effect to such transaction; or
· the first day on which a majority of the members of the Companys Board of Directors are not Continuing Directors; or
· the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Companys assets and the assets of the Subsidiaries taken as a whole to any person (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than to the Company or one of the Companys Subsidiaries; or
· the adoption by the Companys stockholders of a plan or proposal for its liquidation or dissolution.
Notwithstanding the foregoing, a transaction shall not be considered to be a Change of Control if (A) the Company becomes a direct or indirect wholly owned Subsidiary of a holding company and (B) immediately following that transaction, (1) the direct or indirect holders of the Voting Stock of the holding company are substantially the same as the holders of the Companys Voting Stock immediately prior to that transaction or (2) no person or group is the beneficial owner, directly or indirectly, of more than a majority of the total voting power of the Voting Stock of the holding company.
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Change of Control Repurchase Event means the occurrence of both a Change of Control and a Rating Decline with respect to such Change of Control. Notwithstanding anything in this Section 2(i), no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
Continuing Directors means, as of any date of determination, any member of the Companys Board of Directors who (a) was a member of the Companys Board of Directors on the date of issuance of the Notes or (b) was nominated for election or elected to the Companys Board of Directors with the approval of a majority of the Continuing Directors who were members of the Companys Board of Directors at the time of such nomination or election.
Investment Grade means BBB- or higher by S&P and Baa3 or higher by Moodys, or the equivalent of such ratings by S&P or Moodys or, if either S&P or Moodys shall not make a rating on the Notes publicly available, another Rating Agency.
Moodys means Moodys Investors Service Inc. and its successors.
Rating Agency means each of S&P and Moodys or, to the extent S&P or Moodys or both do not make a rating on the Notes publicly available, a nationally recognized statistical rating organization (within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act) or organizations, as the case may be, selected by the Company (as certified by a resolution of the Companys Board of Directors), which shall be substituted for S&P or Moodys, or both, as the case may be.
Rating Decline means, with respect to a Change of Control, the Notes cease to be rated Investment Grade by each Rating Agency on any date during the period ( Trigger Period ) from the date of the public notice of an arrangement that could result in such Change of Control until 60 days following the consummation of such Change of Control (which Trigger Period will be extended for so long as the rating on the Notes is under publicly announced consideration for a possible downgrade by either of the Rating Agencies).
S&P means Standard & Poors Ratings Service, a division of The McGraw-Hill Companies, Inc. and its successors.
Voting Stock of any specified Person as of any date means the capital stock of such Person that is at the time entitled to vote generally in the election of the board of directors, managers or trustees, as applicable, of such Person.
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[ Signature page follows ]
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IN WITNESS WHEREOF, the undersigned has executed this Officers Certificate on behalf of the Company in his or her capacity as specified below.
Dated: November 5, 2009
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AMPHENOL CORPORATION |
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By: |
/s/ David Jositas |
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Name: David Jositas |
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Title: Treasurer |
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By: |
/s/ Edward C. Wetmore |
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Name: Edward C. Wetmore |
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Title: Vice President, Secretary and General Counsel |
EXHIBIT 4.3
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS TO BE MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) , ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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CUSIP: 032095AA9 ISIN: US032095AA98 |
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No. [ ] |
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$[ ],000,000 |
AMPHENOL CORPORATION
4.75% SENIOR NOTES DUE 2014
Amphenol Corporation, a Delaware corporation (the Company, which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., as nominee for the Depositary, or its registered assigns, the principal sum of [ ] HUNDRED MILLION DOLLARS ($[ ],000,000), on November 15, 2014 (such date is hereinafter referred to as the Stated Maturity), and to pay interest on said principal sum, from November 5, 2009 or from the next most recent date to which interest has been paid or duly provided for, semi-annually in arrears, on May 15 and November 15 of each year (each such date, an Interest Payment Date), commencing on May 15, 2010, at the rate of 4.75% per annum until the principal hereof shall have been paid or duly made available for payment and, to the extent permitted by law, to pay interest on any overdue principal and premium, if any, and on any overdue installment of interest from time to time on demand at the rate borne by the Notes.
The interest so payable shall be paid to the persons in whose name the Notes are registered at the close of business on May 1 and November 1 (the Interest Record Dates) (whether or not a Business Day) next preceding such May 15 or November 15 , respectively.
The amount of interest payable on any Interest Payment Date shall be computed on the basis of a 360-day year consisting of twelve 30-day months. In the event that any Interest Payment Date, any redemption date or the Stated Maturity falls on a day that is not a Business Day, the required payment of principal, premium, if any, and interest will be made on the next succeeding Business Day as if made on the date that payment was due and no interest will accrue on the amount so payable for the period from and after such Interest Payment Date, such redemption date or Stated Maturity, as the case may be, to the date of that payment on that next succeeding Business Day.
As used herein, the term Depository shall mean The Depository Trust Company, New York, New York, another clearing agency or any successor registered under the Exchange Act (as defined herein) or other applicable statute or regulation, which in each case, shall be designated by the Company pursuant to the Indenture.
If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the Persons who are Holders of the Notes on a subsequent special record date. The Company shall fix the record date and payment date. At least ten days before the record date, the Company shall mail to the Trustee and to each Holder of the Notes a notice that states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
The place where: (i) principal of and premium, if any, and interest on the Notes shall be payable, (ii) the Notes may be surrendered for registration of transfer or exchange and (iii) notices and demands to or upon the Company in respect of the Notes and the Indenture may be served, shall be at the Companys office or agency in the Borough of Manhattan, The City of New York (which initially shall be the corporate trust office of the Trustee at: 101 Barclay Street, 8th Floor West, New York, New York 10286), provided that, at the Companys option, payment of interest may be made by check mailed to the registered Holders of the Notes at their registered addresses.
Notwithstanding the foregoing, as long as this Note is represented by a Global Note, payments of principal of, premium, if any, and interest on this Note will be made by wire transfer of immediately available funds to the Depositary or its nominee as the initial holder of this Note .
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE FOLLOWING PAGES HEREOF, WHICH FURTHER PROVISIONS SHALL, FOR ALL PURPOSES, HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
Dated: November 5, 2009
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AMPHENOL CORPORATION |
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By: |
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Name: David Jositas |
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Title: Treasurer |
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Attest: |
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Name: Edward C. Wetmore |
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Title: Vice President, Secretary and General Counsel |
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CERTIFICATE OF AUTHENTICATION
This Global Note is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON, |
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as Trustee |
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By: |
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Authorized Officer |
Dated: November 5, 2009
(REVERSE OF NOTE)
AMPHENOL CORPORATION
4.75% SENIOR NOTES DUE 2014
This Global Note designated on the face hereof as 4.75% Senior Notes due 2014 (the Notes) is a duly authorized issue of securities of the Company issued and issuable in one or more series under the Indenture, dated as of November 5, 2009, between the Company and The Bank of New York Mellon, as trustee (the Trustee, which term includes any successor trustee under the Indenture), to which Indenture, as supplemented by an Officers Certificate dated as of November 5, 2009 establishing the terms of the Notes (the Indenture), reference is hereby made for a statement of the respective rights, limitation of rights, duties and immunities thereunder of the Company, the Trustee and the holders of the securities issued thereunder and of the terms upon which said securities are, and are to be, authenticated and delivered. Capitalized terms used herein for which no definition is provided herein shall have the meanings set forth in the Indenture.
The Notes are not subject to a mandatory or optional sinking fund requirement.
The Notes shall be redeemable, at the Companys option, in whole or in part, at any time or from time to time at the redemption price described in the Indenture.
If a Change of Control Repurchase Event (as defined in the Indenture) occurs, unless the Company has exercised its right to redeem all of the Notes as described above, each Holder of the Notes shall have the right to require the Company to repurchase all or any part (equal to $2,000 and integral multiples of $1,000 in excess thereof) of such Holders Notes pursuant to the offer described in the Indenture, at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of repurchase (subject to the right of Holders of record on the relevant Interest Record Date to receive interest due on the relevant Interest Payment Date).
If an Event of Default (as defined in the Indenture) with respect to the Notes of this Series occurs and is continuing, the principal of the Notes of this Series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each Series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time outstanding of each Series to be affected. Without the consent of any Holder of Securities, the Indenture or the Securities may be amended to cure, correct or supplement any ambiguity, omission, defect or inconsistency as to the Securities of such Series or to make any change that does not adversely affect the rights of any Holder of the Securities of such Series in any material respect. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each Series at the time outstanding, on behalf of the Holders of all Securities of such Series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Until such waiver becomes effective, a consent to it by a Holder of this Note is a continuing consent by the Holder and every subsequent Holder of this Note or portion of this Note that evidences the same debt as the consenting Holders Note, even if notation of the consent is not made on this Note. However, any such Holder or subsequent Holder may revoke the consent as to such Holders Note or portion of this Note if the Trustee receives the notice of revocation before the date of the waiver becomes effective. Any amendment or waiver once effective shall bind every Holder of each Series affected by such amendment or waiver, subject to certain exceptions provided for in the Indenture.
Every amendment to the Indenture or the Securities of one or more Series shall be set forth in a Supplemental Indenture that complies with the TIA as then in effect.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times and place and at the rate and in the currency herein prescribed.
A Holder shall register the transfer of or exchange Notes in accordance with the Indenture. The Company may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture. Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Notes of any Series for the period beginning at the opening of business fifteen days immediately preceding the mailing of a notice of redemption of Notes of such Series selected for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Notes of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part.
The Company may be discharged from its obligations under the Notes and under the Indenture with respect to the Notes except for certain provisions thereof, and may be discharged from obligations to comply with certain covenants contained in the Notes and in the Indenture with respect to the Notes, in each case upon satisfaction of certain conditions specified in the Indenture.
A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting the Note waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Note.
The registered Holder of this Note shall be treated as the owner of it for all purposes.
If funds for the payment of principal or interest remain unclaimed for two years, the Trustee and the Paying Agent will repay the funds to the Company at its written request. After that, all liability of the Trustee and such Paying Agent with respect to such funds shall cease.
The Trustee shall act as the Registrar, Paying Agent and Service Agent (as defined in the Indenture) for the Notes. The Notes shall be issued in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Notes shall be issued only in registered form without coupons. In the event of a declaration of acceleration of the maturity of the Notes pursuant to the Indenture, 100% of the principal amount of the Notes shall be payable. The Notes shall be issued in United States dollars and principal of and premium, if any, and interest on the Notes shall be paid in United States dollars. The Notes shall be unsecured debt securities of the Company. The Notes shall not be convertible to any other securities of the Company. The Indenture and this Note shall be governed by and construed in accordance with the laws of the State of New York.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
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(Insert assignees soc. sec. or tax I.D. no.) |
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(Print or type assignees name, address and Zip Code) |
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and irrevocably appoint |
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to transfer this Note on the books of the Company. The Agent may substitute another to act for him. |
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Signature Guarantee*: |
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* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to the provisions hereof, check the box: o
If you want to elect to have only part of the Note purchased by the Company pursuant to the provisions hereof, state the amount you elect to have purchased: $
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Tax Identification No.: |
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Signature Guarantee*: |
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* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
EXHIBIT 5.1
November 5, 2009
Amphenol Corporation
358 Hall Avenue
Wallingford, Connecticut 06492
Ladies and Gentlemen:
We have acted as counsel to Amphenol Corporation, a Delaware corporation (the Company), in connection with the issuance and sale by the Company of $600,000,000 aggregate principal amount of the Companys 4.75% Senior Notes due 2014 (the Notes) pursuant to the Underwriting Agreement dated October 29, 2009 between Banc of America Securities LLC and J.P. Morgan Securities Inc., as representatives of the several underwriters named therein (the Underwriters), and the Company (the Agreement). The Notes are being issued under the Indenture dated as of November 5, 2009 between The Bank of New York Mellon, as trustee (the Trustee), and the Company (including the form and terms of the Notes established in the Officers Certificate of the Company, dated November 5, 2009, pursuant to Section 2.2 thereof, the Indenture).
We have reviewed (a) the Agreement, (b) the Indenture, (c) the Registration Statement on Form S-3 (File No. 333-162722) (the Registration Statement) filed by the Company to register the Notes with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933 (the Act) and (d) the Prospectus dated October 29, 2009, as supplemented by the Prospectus Supplement dated October 29, 2009, relating to the offer and sale of the Notes (as so supplemented, the Prospectus) filed by the Company with the Commission pursuant to Rule 424(b)(5) under the Act. We have also reviewed such other agreements, documents, records, certificates and other materials, and have satisfied ourselves as to such other matters, as we have considered relevant or necessary as a basis for this opinion.
In such review, we have assumed the accuracy and completeness of all agreements, documents, records, certificates and other materials submitted to us, the conformity with the originals of all such materials submitted to us as copies (whether or not certified and including facsimiles), the authenticity of the originals of such materials and all materials submitted to us as originals, the genuineness of all signatures and the legal capacity of all natural persons. In delivering this opinion, we have relied, without independent verification, as to factual matters, on certificates and other written or oral statements of governmental and other public officials and of officers and representatives of the Company, the Underwriters and the Trustee.
On the basis of the assumptions and subject to the qualifications and limitations set forth herein, we are of the opinion that the Notes constitute the valid and legally binding obligations of the Company enforceable against the Company in
accordance with their terms, except as may be subject to and limited by the effect of (a) applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and other similar laws affecting creditors rights generally, (b) general equitable principles (whether considered in a proceeding in equity or at law) and (c) requirements of reasonableness, good faith, materiality and fair dealing and the discretion of the court before which any matter may be brought.
We have assumed the accuracy and completeness of all agreements, documents, records, certificates and other materials submitted to us, the conformity with the originals of all such materials submitted to us as copies (whether or not certified and including facsimiles), the authenticity of the originals of such materials and all materials submitted to us as originals, the genuineness of all signatures and the legal capacity of all natural persons. In delivering this opinion, we have relied, without independent verification, as to factual matters, on certificates and other written or oral statements of governmental and other public officials and of officers and representatives of the Company, the Underwriters and the Trustee.
This opinion is limited to the law of the State of New York and the Delaware General Corporation Law, in each case as in effect on the date hereof.
We hereby consent to the filing of this opinion as Exhibit 5 to the Companys Current Report on Form 8-K filed by the Company with the Commission on the date hereof and the incorporation thereof in the Registration Statement and to the use of our name under the caption Legal Matters in the Prospectus. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Pillsbury Winthrop Shaw Pittman LLP