EXHIBIT 10.14
CONFORMED COPY
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INDEMNIFICATION AGREEMENT
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INDEMNIFICATION AGREEMENT, dated as of May 21, 1998 (the
"Agreement"), by and between Dynatech Corporation, a Massachusetts corporation
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(the "Company"), Telecommunications Techniques Co., LLC, a Delaware limited
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liability company and a wholly-owned subsidiary of the Company ("TTC"), Clayton,
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Dubilier & Rice, Inc., a Delaware corporation ("CD&R"), and Clayton, Dubilier &
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Rice Fund V Limited Partnership, a Cayman Islands exempted limited partnership
(together with any other investment vehicle managed by CD&R, the "CD&R Fund").
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Capitalized terms used herein and not otherwise defined have the meanings set
forth in Section 1 of this Agreement.
W I T N E S S E T H:
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WHEREAS, the CD&R Fund is managed by CD&R, and the general partner of
the CD&R Fund is Clayton, Dubilier & Rice Associates V Limited Partnership, a
Cayman Islands exempted limited partnership (together with any general partner
of any other investment vehicle managed by CD&R, "CD&R Associates"), and the
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general partner of CD&R Associates is CD&R Investment Associates, Inc., a
Delaware corporation (together with any other general partner of CD&R
Associates, "Associates Inc.");
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WHEREAS, CD&R organized CDRD Merger Corporation, a Delaware
corporation ("MergerCo") to effect the recapitalization of the Company and CD&R
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performed financial, management advisory and other services for the Company and
MergerCo in connection therewith, including but not limited to participation in
connection with the preparation, negotiation, execution and delivery of the
Agreement and Plan of Merger, dated as of December 20, 1997 (the "Merger
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Agreement"), by and between the Company and MergerCo and the consummation of the
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transaction contemplated thereby;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company is entering into a Consulting Agreement, dated as of the
date hereof (the "Consulting Agreement"), by and between the Company and CD&R;
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WHEREAS, pursuant to the Merger Agreement, MergerCo has merged with
and into the Company (the "Merger") on the date hereof, and the Company, as the
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surviving corporation in the Merger, thereupon succeeded to all of the rights
and obligations of MergerCo;
WHEREAS, by operation of the Merger, each share of common stock of the
Company issued and outstanding immediately prior to the closing thereof, other
than shares held by the Company as treasury stock, was converted into the right
to receive $47.75 in cash and 0.5 shares of Recapitalized Common Stock (as
defined in the Merger Agreement);
WHEREAS, as contemplated by the Merger Agreement, certain employees of
the Company and its Subsidiaries have retained some or all of their options to
purchase common stock of the Company (the "Management Rollover");
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WHEREAS, in connection with the offer (the "Exchange Offer") by the
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Company of the Recapitalized Common Stock to the stockholders of the Company and
the solicitation by the Company of proxies of its respective stockholders to
vote in favor of the Merger, (a) the Company prepared and filed with the
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Securities and Exchange Commission (the "Commission") a registration statement
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on Form S-4 (the "S-4") and (b) the Company, MergerCo, the CD&R Fund and certain
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other persons prepared and filed with the Commission a Transaction Statement on
Schedule 13E-3 (the "13E-3");
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WHEREAS, prior to the closing of the Merger, the Company effected a
restructuring of its Subsidiaries pursuant to which TTC was converted into a
Delaware limited liability company and the shares of common stock of the
Company's direct subsidiaries were transferred to TTC (the "Restructuring");
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WHEREAS, in order to finance the Merger and related transactions, the
Company and TTC Merger Co., LLC, a Delaware limited liability company and a
wholly-owned subsidiary of the Company ("TTC MergerCo"), entered into a Credit
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Agreement, dated as of May 21, 1998, among the Company, TTC MergerCo, the
lenders named therein and J.P. Morgan Securities Inc. and Credit Suisse First
Boston as arrangers, providing for borrowing of up to a maximum principal amount
of $370 million (the "Senior Secured Credit Facilities");
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WHEREAS, in order further to finance the Merger and related
transactions, the Company and TTC MergerCo offered and sold (the "Note
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Offering"), in an offering to institutional investors pursuant to Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act"),
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$275,000,000 aggregate principal of 9.75% Senior Subordinated Notes due 2008
(the "Senior Subordinated Notes");
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WHEREAS, TTC MergerCo merged with and into TTC on the date hereof and
TTC, as the surviving company, thereupon succeeded to, inter alia, the
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obligations of TTC MergerCo with respect to the Senior Secured Credit Facilities
and the Senior Subordinated Notes;
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WHEREAS, the Company has been released as a primary obligor with
respect to the Senior Secured Credit Facilities and the Senior Subordinated
Notes;
WHEREAS, CD&R has performed financial, management advisory and other
services for the Company, including but not limited to providing assistance in
connection with, (i) the preparation, negotiation, execution and delivery of the
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Merger Agreement, (ii) the preparation, filing and circulation of the S-4, the
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13E-3 and related materials to the stockholders of the Company in connection
with the Merger, (iii) the retention of legal, accounting, environmental,
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insurance, investment banking, financial and other advisors and consultants in
connection with the Merger and (iv) the preparation, negotiation, execution and
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delivery of the commitment, fee and engagement letters, registration rights and
purchase agreements, credit agreements, indentures and indenture supplements,
guarantees, mortgages, pledge agreements and other security agreements,
subscription, registration rights and participation agreements, exchange agent
agreements, and other agreements, instruments and documents, relating to the
Senior Secured Financing, Note Offering, or otherwise relating to the Financing
or the other Transactions, (v) the preparation and circulation of information
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and offering memoranda and other materials in connection with the Senior Secured
Financing and the Note Offering and (vi) the structuring, implementation and
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consummation of the Merger (such services collectively, the "Merger Services");
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WHEREAS, it is contemplated that TTC will offer (the "Note Exchange
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Offer") to exchange the Senior Subordinated Notes for substantially identical
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notes to be registered on Form S-4;
WHEREAS, the Company or one or more of its respective Subsidiaries
from time to time in the future (a) may offer and sell or cause to be offered
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and sold equity or debt securities (such offerings, together with the Note
Exchange Offer, being collectively referred to as the "Subsequent Offerings"),
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including without limitation (i) offerings of shares of common stock of the
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Company, and/or options to purchase such shares to employees, directors,
managers and consultants of and to the Company or any Subsidiary (a "Management
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Offering"), and (ii) one or more offerings of debt securities for the purpose of
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refinancing any indebtedness of the Company or any Subsidiary or for other
corporate purposes, and (b) may repurchase, redeem or otherwise acquire certain
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securities of the Company or one or more of its Subsidiaries (any such
repurchase or redemption being re ferred to herein as a "Redemption");
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WHEREAS, immediately following the Merger, the CD&R Fund will be the
largest stockholder of the Company;
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WHEREAS, the parties hereto recognize the possibility that claims
might be made against and liabilities incurred by CD&R, the CD&R Fund, CD&R
Associates, Associates Inc. or related persons or affiliates under applicable
securities laws or otherwise in connection with the Transactions or the
Securities Offerings, or relating to other actions or omissions of or by
MergerCo, the Company or its respective Subsidiaries, or relating to the
provision by CD&R of management consulting, monitoring and financial advisory
ser vices to MergerCo, the Company and its respective Subsidiaries, and the
parties hereto accordingly wish to provide for CD&R, the CD&R Fund, CD&R
Associates, Associates Inc. and related persons and affiliates to be indemnified
in respect of any such claims and liabilities; and
WHEREAS, the parties hereto recognize that claims might be made
against and liabilities incurred by directors and officers of MergerCo, the
Company and any Subsidiary in connection with their acting in such capacity, and
accordingly wish to provide for such directors and officers to be indemnified to
the fullest extent permitted by law in respect of any such claims and
liabilities;
NOW, THEREFORE, in consideration of the foregoing premises, and the
mutual agreements and covenants and provisions herein set forth, the parties
hereto hereby agree as follows:
1. Definitions.
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(a) "Claim" means, with respect to any Indemnitee, any claim against
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such Indemnitee involving any Obligation with respect to which such Indemnitee
may be entitled to be defended and indemnified by the Company or TTC under this
Agreement.
(b) "Consulting Agreement" means the Consulting Agreement, dated as of
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the date hereof, by and among the Company, TTC and CD&R, as the same may be
amended, waived, modified or supplemented from time to time.
(c) "Financing" means the financing provided for by the Senior Secured
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Credit Facilities and the Senior Subordinated Notes.
(d) "Indemnitee" means each of CD&R, the CD&R Fund, CD&R Associates,
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Associates Inc., CD&R Investment Associates II, Inc. ("Associates II"), their
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respective, affiliates, successors and assigns, and their respective directors,
officers, partners, employees, agents, advisors, representatives and controlling
persons (within the meaning of the Securities Act of 1933), each other person
who is or becomes a director or an officer of the Company or any Subsidiary and
each other person who is or becomes an officer of the communications test
division of TTC.
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(e) "Obligations" means, collectively, any and all claims,
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obligations, liabilities, causes of actions, actions, suits, proceedings,
investigations, judgments, decrees, losses, damages, fees, costs and expenses
(including without limitation interest, penalties and fees and disbursements of
attorneys, accountants, investment bankers and other professional advisors), in
each case whether incurred, arising or existing with respect to third parties or
otherwise at any time or from time to time.
(f) "Related Document" means any agreement, certificate, instrument or
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other document to which MergerCo, the Company or any Subsidiary may be a party
or by which it or any of its properties or assets may be bound or affected from
time to time relat ing in any way to the Transactions or any Securities
Offering or any of the transactions contemplated thereby, including without
limitation, in each case as the same may be amended, modified, waived or
supplemented from time to time, (A) any registration statement filed by or on
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behalf of MergerCo, the Company or any Subsidiary with the Commission in
connection with the Transactions or any Securities Offering, including all
exhibits, financial statements and schedules appended thereto, and any
submissions to the Commission in connection therewith, (B) any prospectus,
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preliminary or otherwise, included in such registration statements or otherwise
filed by or on behalf of MergerCo, the Company or any Subsidiary in connection
with the Transactions or any Securities Offering or used to offer or confirm
sales of their respective securities in any Securities Offering, (C) any private
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placement or offering memorandum or circular, or other information or materials
distributed by or on behalf of MergerCo, the Company or any Subsidiary or any
placement agent or underwriter in connection with the Transactions or any
Securities Offering, (D) any federal, state or foreign securities law or other
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governmental or regulatory filings or applications made in connection with any
Securities Offering, the Transactions or any of the transactions contemplated
thereby, (E) any deal-manager, underwriting, subscription, purchase,
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stockholders, option or registration rights agreement or plan entered into or
adopted by MergerCo, the Company or any Subsidiary in connection with the
Transactions or any Securities Offering, (F) any quarterly, annual or current
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reports filed by the Company or any Subsidiary with the Commission or any
prospectus, proxy statement or transaction statements, including the S-4 and the
Schedule 13E-3, filed by or on behalf of MergerCo, the Company, any Subsidiary
or any Indemnitee with the Commission in connection with the Merger, including
all exhibits, financial statements and schedules appended thereto, and any
submission to the Commission in connection therewith.
(g) "Securities Offerings" means any Redemption, the Management
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Rollover, the Exchange Offer, any Management Offering the Note Exchange Offer
and any other Subsequent Offering.
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(h) "Subsidiary" means each corporation or other person or entity in
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which the Company owns or controls, directly or indirectly, capital stock or
other equity interests representing at least 25% of the outstanding voting stock
or other equity interests.
(i) "Transactions" means the Merger, the Management Rollover, the
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Restructuring, the Exchange Offer and the Financing.
2. Indemnification.
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(a) Each of the Company and TTC (each an "Indemnifying Party" and
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collectively, the "Indemnifying Parties"), jointly and severally agrees to
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indemnify, defend and hold harmless each Indemnitee:
(i) from and against any and all Obligations, whether incurred with
respect to third parties or otherwise, in any way resulting from, arising
out of or in connection with, based upon or relating to (A) the Securities
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Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
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or any other applicable securities or other laws, in connection with any
Securities Offering, any Related Document or any of the transactions
contemplated thereby, (B) any other action or failure to act of MergerCo,
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the Company or any Subsidiary or any of their predecessors, whether such
action or failure has occurred or is yet to occur or (C) except to the
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extent that any such Obligation is found in a final judgment by a court of
competent jurisdiction to have resulted from the gross negligence or
intentional misconduct of CD&R, the performance by CD&R of management
consulting, monitoring, financial advisory or other services for MergerCo,
the Company or any Subsidiary (whether performed prior to the date hereof,
hereafter, pursuant to the Consulting Agreement or otherwise); and
(ii) to the fullest extent permitted by applicable law, from and
against any and all Obligations in any way resulting from, arising out of
or in connection with, based upon or relating to (A) the fact that such
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Indemnitee is or was a director or an officer of MergerCo, the Company or
any Subsidiary, as the case may be, or is or was serving at the request of
such corporation as a director, officer, employee or agent of or advisor or
consultant to another corporation, partnership, joint venture, trust or
other enterprise or (B) any breach or alleged breach by such Indemnitee of
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his or her fiduciary duty as a director or an officer of MergerCo, the
Company or any Subsidiary, as the case may be;
in each case including but not limited to any and all fees, costs and expenses
(including without limitation fees and disbursements of attorneys) incurred by
or on behalf of any
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Indemnitee in asserting, exercising or enforcing any of its rights, powers,
privileges or remedies in respect of this Agreement or the Consulting Agreement.
(b) Without in any way limiting the foregoing Section 2(a), each of
the Indemnifying Parties agrees, jointly and severally, to indemnify, defend and
hold harmless each Indemnitee from and against any and all Obligations resulting
from, arising out of or in connection with, based upon or relating to
liabilities under the Securities Act, the Exchange Act or any other applicable
securities or other laws, rules or regulations in connection with (i) the
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inaccuracy or breach of or default under any representation, warranty, covenant
or agreement in any Related Document, (ii) any untrue statement or alleged
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untrue statement of a material fact contained in any Related Document or (iii)
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any omission or alleged omission to state in any Related Document a material
fact required to be stated therein or necessary to make the statements therein
not misleading. Notwithstanding the foregoing, the Indemnifying Parties shall
not be obligated to indemnify such Indemnitee from and against any such
Obligation to the extent that such Obligation arises out of or is based upon an
untrue statement or omission made in such Related Document in reliance upon and
in conformity with written information furnished to MergerCo or the Company as
the case may be, in an instrument duly executed by such Indemnitee and
specifically stating that it is for use in the preparation of such Related
Document.
3. Contribution.
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(a) Except to the extent that Section 3(b) is applicable, if for any
reason the indemnity provided for in Section 2(a) is unavailable or is
insufficient to hold harmless any Indemnitee from any of the Obligations covered
by such indemnity, then the Indemnifying Parties, jointly and severally, shall
contribute to the amount paid or payable by such Indemnitee as a result of such
Obligation in such proportion as is appropriate to reflect (i) the relative
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fault of each of MergerCo, the Company and the Subsidiaries, on the one hand,
and such Indemnitee, on the other, in connection with the state of facts giving
rise to such Obligation, (ii) if such Obligation results from, arises out of, is
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based upon or relates to the Transactions or any Securities Offering, the
relative benefits received by each of MergerCo, the Company and the
Subsidiaries, on the one hand, and such Indemnitee, on the other, from such
Transaction or Securities Offering and (iii) if required by applicable law, any
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other relevant equitable considerations.
(b) If for any reason the indemnity specifically provided for in
Section 2(b) is unavailable or is insufficient to hold harmless any Indemnitee
from any of the Obligations covered by such indemnity, then the Indemnifying
Parties, jointly and severally, shall contribute to the amount paid or payable
by such Indemnitee as a result of such Obligation in such proportion as is
appropriate to reflect (i) the relative fault of each of MergerCo, the Company
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and the Subsidiaries, on the one hand, and such indemnitee, on the
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other, in connection with the information contained in or omitted from any
Related Document, which inclusion or omission resulted in the inaccuracy or
breach of or default under any representation, warranty, covenant or agreement
therein, or which information is or is alleged to be untrue, required to be
stated therein or necessary to make the statements therein not misleading, (ii)
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the relative benefits received by MergerCo, the Company and the Subsidiaries, on
the one hand, and such Indemnitee, on the other, from such Transaction or
Securities Offering and (iii) if required by applicable law, any other relevant
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equitable considerations.
(c) For purposes of Section 3(a), the relative fault of each of
MergerCo, the Company and the Subsidiaries, on the one hand, and of the
Indemnitee, on the other, shall be determined by reference to, among other
things, their respective relative intent, knowledge, access to information and
opportunity to correct the state of facts giving rise to such Obligation. For
purposes of Section 3(b), the relative fault of each of MergerCo, the Company
and the Subsidiaries, on the one hand, and of the Indemnitee, on the other,
shall be determined by reference to, among other things, (i) whether the
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included or omitted information relates to information supplied by MergerCo, the
Company and the Subsidiaries, on the one hand, or by such Indemnitee, on the
other, and (ii) their respective relative intent, knowledge, access to
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information and opportunity to correct such inaccuracy, breach, default, untrue
or alleged untrue statement, or omission or alleged omission. For purposes of
Section 3(a) or 3(b), the relative benefits received by each of MergerCo, the
Company and the Subsidiaries, on the one hand, and the Indemnitee, on the other,
shall be determined by weighing the direct monetary proceeds to MergerCo, the
Company and the Subsidiaries, on the one hand, and such Indemnitee, on the
other, from such Transaction or Securities Offering.
(d) The parties hereto acknowledge and agree that it would not be just
and equitable if contributions pursuant to Section 3(a) or 3(b) were determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to in such respective
Section. The Indemnifying Parties shall not be liable under Section 3(a) or
3(b), as applicable, for contribution to the amount paid or payable by any
Indemnitee except to the extent and under such circumstances the Indemnifying
Parties would have been liable to indemnify, defend and hold harmless such
Indemnitee under the corresponding Section 2(a) or 2(b), as applicable, if such
indemnity were enforceable under applicable law. No Indemnitee shall be
entitled to contribution from the Indemnifying Parties with respect to any
Obligation covered by the indemnity specifically provided for in Section 2(b) in
the event that such Indemnitee is finally determined to be guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) in
connection with such Obligation and the Indemnifying Parties are not guilty of
such fraudulent misrepresentation.
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4. Indemnification Procedures.
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(a) Whenever any Indemnitee shall have actual knowledge of the
reasonable likelihood of the assertion of a Claim, CD&R (acting on its own
behalf or, if requested in writing by any such Indemnitee other than itself, on
behalf of such Indemnitee) or such Indemnitee shall notify the Indemnifying
Parties in writing of the Claim (the "Notice of Claim") with reasonable
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promptness after such Indemnitee has such knowledge relating to such Claim and
has notified CD&R thereof. The Notice of Claim shall specify all material facts
known to CD&R (or if given by such Indemnitee, such Indemnitee) that may give
rise to such Claim and the monetary amount or an estimate of the monetary amount
of the Obligation involved if CD&R (or if given by such Indemnitee, such
Indemnitee) has knowledge of such amount or a reasonable basis for making such
an estimate. The failure of CD&R or such Indemnitee to give such Notice of
Claim shall not relieve the Indemnifying Parties of their respective
indemnification obligations under this Agreement except to the extent that such
omission results in a failure of actual notice to the Indemnifying Parties and
they are materially injured as a result of the failure to give such Notice of
Claim. The Indemnifying Parties shall, at their expense, undertake the de
fense of such Claim with attorneys of their own choosing reasonably satisfactory
both to CD&R and to any Indemnitee that, in the exercise of such Indemnitee's
good faith judgement, reasonably determines that the Claim presents an actual or
potential conflict of interest with CD&R. CD&R may participate in such defense
with counsel of CD&R's choosing at the expense of the Indemnifying Parties. If
in the exercise of their good faith judgment any one or more other Indemnitee
reasonably determines that the Claim presents an actual or potential conflict of
interest with CD&R, such Indemnitee or Indemnitees may participate in the
defense of the Claim with one counsel of the Indemnitee or Indemnitees' choosing
at the expense of the Indemnifying Parties. In the event that the Indemnifying
Parties do not undertake the defense of the Claim within a reasonable time after
CD&R has given the Notice of Claim, or in the event that CD&R shall in good
faith determine that the defense of any claim by the Indemnifying Parties is
inadequate or may conflict with the interests of any Indemnitee, CD&R may, at
the expense of the Indemnifying Parties and after giving notice to the
Indemnifying Parties of such action, undertake the defense of the Claim and
compromise or settle the Claim, all for the account of and at the risk of the
Indemnifying Parties. In the defense of any Claim, the Indemnifying Parties
shall not, except with the consent of CD&R (or, in the case of any entry of any
judgment or settlement that is binding on any other Indemnitee, such other
Indemnitee), consent to entry of any judgment or enter into any settlement that
includes any injunctive or other non-monetary relief, or that does not include
as an unconditional term thereof the giving by the person or persons asserting
such Claim to such Indemnitee of a release from all liability with respect to
such Claim. In each case, CD&R and each other Indemnitee seeking
indemnification hereunder will cooperate with the Indemnifying Parties, so long
as the Indemnifying Parties are conducting the defense of the Claim, in the
preparation for and the prosecution of the
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defense of such Claim, including making available evidence within the control of
CD&R or such Indemnitee, as the case may be, and persons needed as witnesses who
are employed by CD&R or such Indemnitee, as the case may be, in each case as
reasonably needed for such defense and at cost, which cost, to the extent
reasonably incurred, shall be paid by the Indemnifying Parties.
(b) The Indemnifying Parties hereby agree to advance costs and
expenses, including attorney's fees, incurred by CD&R (acting on its own behalf
or, if requested by any such Indemnitee other than itself, on behalf of such
Indemnitee) or any Indemnitee in defending any Claim in advance of the final
disposition of such Claim upon receipt of an undertaking by or on behalf of CD&R
or such Indemnitee to repay amounts so advanced if it shall ultimately be
determined that CD&R or such Indemnitee is not entitled to be indemnified by the
Indemnifying Parties as authorized by this Agreement.
(c) Each Indemnitee shall notify the Indemnifying Parties in writing
of the amount of any Claim actually paid by such Indemnitee (the "Notice of
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Payment"). The amount of any Claim actually paid by an Indemnitee shall bear
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simple interest at the rate equal to Credit Suisse First Boston's prime rate as
of the date of such payment plus 2% per annum, from the date the Indemnifying
Parties receive the Notice of Payment to the date on which the Indemnifying
Parties shall repay the amount of such Claim plus interest thereon to such
Indemnitee.
5. Certain Covenants. The Company and TTC jointly and severally
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agree to perform their obligations under this Agreement. The rights of each
Indemnitee to be indemnified under any other agreement, document, certificate or
instrument or applicable law are independent of and in addition to any rights of
such Indemnitee to be indemnified under this Agreement. The rights of each
Indemnitee and the obligations of the Company hereunder shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Indemnitee. The Indemnifying Parties shall implement and maintain in full force
and effect any and all corporate articles or charter and by-law provisions that
may be necessary or appropriate to enable them to carry out their obligations
hereunder to the fullest extent permitted by applicable corporate law, including
without limitation a provision of their articles or certificate of incorporation
eliminating liability of a director for breach of fiduciary duty to the fullest
extent permitted by applicable corporate law, as it may be amended from time to
time.
6. Notices. All notices and other communications hereunder shall be
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in writing and shall be delivered by certified or registered mail (first class
postage prepaid and return receipt requested), telecopier, overnight courier or
hand delivery, as follows:
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If to the Company or TTC, to:
Dynatech Corporation
Corporate Headquarters
3 New England Executive Park
Burlington, Massachusetts 01803
Facsimile: (617) 229-8850
Telephone: (781) 272-6100
Attention: General Counsel
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If to the CD&R Fund, to:
Clayton, Dubilier & Rice
Fund V Limited Partnership
1043 Foulk Road
Suite 106
Wilmington, Delaware 19803
Attention: Joseph L. Rice, III
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with a copy to:
Clayton, Dubilier & Rice, Inc.
375 Park Avenue
New York, New York 10152
Telephone: (212) 407-5200
Telecopier No.: (212) 407-5252
Attention: Joseph L. Rice, III
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If to CD&R or any other Indemnitee, to:
Clayton, Dubilier & Rice, Inc.
375 Park Avenue
18th Floor
New York, New York 10152
Telephone: (212) 407-5200
Telecopy: (212) 407-5252
Attention: Joseph L. Rice, III
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with the copy, in the case of any other Indemnitee, to:
Dynatech Corporation
Corporate Headquarters
3 New England Executive Park
Burlington, Massachusetts 01803
Facsimile: (617) 229-8850
Telephone: (781) 272-6100
Attention: Chief Executive Officer
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or to such other address or such other person as the Company, TTC, the CD&R Fund
or CD&R, as the case may be, shall have designated by notice to the other
parties hereto. All communications hereunder shall be effective upon receipt by
the party to which they are addressed. A copy of any notice or other
communication given under this Agreement shall also be given to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telephone: (212) 909-6000
Facsimile: (212) 909-6836
Attention: Franci J. Blassberg, Esq.
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7. Governing Law. This Agreement shall be governed in all respects,
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including as to validity, interpretation and effect, by the law of the State of
New York without giving effect to its principles or rules of conflict of laws to
the extent such principles or rules would require or permit the application of
the laws of another jurisdiction, except to the extent that the corporate law of
another jurisdiction specifically and mandatorily applies, in which case such
law shall apply.
8. Severability. If any provision or provisions of this Agreement
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shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
9. Miscellaneous. The headings contained in this Agreement are for
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reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. This Agreement shall be binding upon and
inure to the benefit of each party hereto and its successors and permitted
assigns, and each other Indemnitee, but neither this Agreement nor any right,
interest or obligation hereunder shall be assigned, whether by operation of law
or otherwise, by the Company or TTC without the prior written consent of
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CD&R and the CD&R Fund. This Agreement is not intended to confer any right or
remedy hereunder upon any person other than each of the parties hereto and their
respective successors and permitted assigns and each other Indemnitee. No
amendment, modification, supplement or discharge of this Agreement, and no
waiver hereunder shall be valid and binding unless set forth in writing and duly
executed by the party or other Indemnitee against whom enforcement of the
amendment, modification, supplement or discharge is sought. Neither the waiver
by any of the parties hereto or any other Indemnitee of a breach of or a default
under any of the provisions of this Agreement, nor the failure by any party
hereto or any other Indemnitee on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right, powers or privilege
hereunder, shall be construed as a waiver of any other breach or default of a
similar nature, or as a waiver of any provisions hereof, or any rights, powers
or privileges hereunder. The rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies that any party or other
Indemnitee may otherwise have at law or in equity or otherwise. This Agreement
may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement by their authorized representatives as of the date first above
written.
DYNATECH CORPORATION
By: /s/ Allan M. Kline
------------------
Name: Allan M. Kline
Title: Vice President
TELECOMMUNICATIONS TECHNIQUES
CO., LLC
By: Dynatech Corporation, its sole member
By: /s/ Allan M. Kline
------------------
Name: Allan M. Kline
Title: Vice President
CLAYTON, DUBILIER & RICE, INC.
By: /s/ Joseph L. Rice, III
-----------------------
Name: Joseph L. Rice, III
Title: Chairman
CLAYTON, DUBILIER & RICE
FUND V LIMITED PARTNERSHIP
By: CD&R Associates V Limited
Partnership, the General Partner
By: CD&R Investment Associates II,
Inc., the general partner
By: /s/ Joseph L. Rice, III
-----------------------
Name: Joseph L. Rice, III
Title: Chairman
14