EXHIBIT 2
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DYNATECH CORPORATION
REGISTRATION RIGHTS AGREEMENT
Dated as of May 21, 1998
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TABLE OF CONTENTS
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PAGE
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1. Background............................................................1
2. Definitions...........................................................1
3. Registration..........................................................4
3.1. Registration on Request......................................4
(a) Requests..............................................4
(b) Obligation to Effect Registration.....................5
(c) Registration Statement Form...........................5
(d) Expenses..............................................6
(e) Inclusion of Other Securities.........................6
(f) Effective Registration Statement......................6
(g) Pro Rata Allocation...................................7
3.2. Incidental Registration......................................7
3.3. Registration Procedures......................................9
3.4. Underwritten Offerings......................................13
(a) Underwritten Offerings Exclusive.....................13
(b) Underwriting Agreement...............................13
(c) Selection of Underwriters............................14
(d) Incidental Underwritten Offerings....................14
(e) Hold Back Agreements.................................14
3.5. Preparation; Reasonable Investigation.......................15
3.6. Other Registrations.........................................15
3.7. Indemnification.............................................16
(a) Indemnification by the Company.......................16
(b) Indemnification by the Sellers.......................17
(c) Notices of Claims, etc...............................17
(d) Other Indemnification................................18
(e) Other Remedies.......................................18
(f) Officers and Directors...............................19
4. Miscellaneous........................................................19
4.1. Amendments and Waivers......................................19
4.2. Nominees for Beneficial Owners..............................19
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4.3. Successors, Assigns and Transferees.....................20
4.4. Notices.................................................20
4.5. No Inconsistent Agreements..............................21
4.6. Remedies; Attorneys' Fees...............................21
4.7. Stock Splits, etc.......................................21
4.8. Term....................................................22
4.9. Severability............................................22
4.10. Headings................................................22
4.11. Counterparts............................................22
4.12. Governing Law...........................................22
4.13. No Third Party Beneficiaries............................22
4.14. Consent to Jurisdiction.................................22
4.15. Waiver of Jury Trial....................................23
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REGISTRATION RIGHTS AGREEMENT
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REGISTRATION AND RIGHTS AGREEMENT, dated as of May 21, 1998,
among Dynatech Corporation, a Massachusetts corporation (the "COMPANY"),
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▇▇▇▇▇▇▇, Dubilier & Rice Fund V Limited Partnership, a Cayman Islands limited
partnership (the "FUND"), ▇▇. ▇▇▇▇ ▇. ▇▇▇▇ (the "MANAGER"), The ▇▇▇▇ ▇. ▇▇▇▇
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1997 Qualfied Annuity Trust, under Trust Agreement, dated as of the 28th day of
November, 1997, between ▇▇▇▇ ▇. ▇▇▇▇ as Grantor and ▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇. as Trustees (the "▇▇▇▇ ▇. ▇▇▇▇ Trust") and The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
1997 Qualfied Annuity Trust, under Trust Agreement, dated as of the 28th day of
November, 1997, between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ as Grantor and ▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇. as Trustees (together with the ▇▇▇▇ ▇. ▇▇▇▇ Trust, the "Trusts").
1. BACKGROUND. (a) Pursuant to an Agreement and Plan of Merger,
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dated as of December 20, 1997 (the "MERGER AGREEMENT"), between the Company and
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CDRD Merger Corporation, a Delaware corporation ("MERGERCO"), formed by the
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Fund, MergerCo has merged with and into the Company (the "MERGER") and shares of
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MergerCo common stock owned by Fund have been converted into 110,740,720 shares
of common stock, no par value (the "COMMON STOCK"), of the Company.
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(b) Pursuant to the Merger Agreement, and pursuant to the
Employment Agreements, dated as of December 20, 1997, between the Company and
the Manager, shares of MergerCo common stock owned by the Manager and the Trusts
have been converted into 799,758 shares of Common Stock.
(c) The Company or the Fund may in the future issue or sell
directly or pursuant to option or other rights, additional shares of Common
Stock to Directors of the Company or directors or senior executives of
corporations in which entities managed or sponsored by CD&R (as defined below)
have made substantial equity investments or other individuals with whom CD&R has
a consulting or advisory relationship ("INDIVIDUAL INVESTORS").
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2. DEFINITIONS. For purposes of this Agreement, the following
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terms have the following respective meanings:
"ADDITIONAL SALE": See Section 4(a).
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"AFFILIATE": With respect to any Person, any other Person
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directly or indirectly Controlling, Controlled by or under common Control with
such first Person. "Control" means the power to direct the affairs of a Person
by reason of ownership of voting securities, by contract or otherwise. Any
director, member of management or other employee of the Company or any of its
Subsidiaries who would not otherwise be an Affiliate shall not be deemed to be
an Affiliate of the Fund.
"BOARD": The Board of Directors of the Company.
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"BUSINESS DAY": A day other than a Saturday, Sunday or other day
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on which commercial banks in New York City are authorized or required to close.
"CD&R": ▇▇▇▇▇▇▇, Dubilier & Rice, Inc., a Delaware corporation.
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"COMMON STOCK": See Section 1(a).
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"COMPANY": See the introduction to this Agreement.
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"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended,
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or any successor Federal statute, and the rules and regulations thereunder which
shall be in effect at the time. Any reference to a particular section thereof
shall include a reference to the corresponding section, if any, of any such
successor Federal statute, and the rules and regulations thereunder.
"FUND": See the introduction to this Agreement.
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"INDIVIDUAL INVESTORS": See Section 1(c).
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"MANAGER": See the introduction to this Agreement.
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"MERGER": See Section 1(a).
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"MERGER AGREEMENT": See Section 1(a).
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"MERGERCO": See Section 1(a).
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"NASD": National Association of Securities Dealers, Inc.
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"NASDAQ": The NASD Automated Quotation System.
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"OFFER": See Section 4(a).
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"OFFERED SECURITIES": See Section 4(b).
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"PERSON": Any natural person, firm, partnership, association,
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corporation, company, trust, business trust, governmental entity or other
entity.
"PROPORTIONATE SHARE: See Section 4(b).
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"PUBLIC OFFERING": An underwritten public offering of Common
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Stock led by at least one underwriter of nationally recognized standing.
"REGISTRABLE SECURITIES": (a) The Common Stock (i) received by
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the Fund, the Manager and the Trusts as a result of the Merger or (ii) issued to
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Individual Investors pursuant to a stock subscription agreement or other
agreement that provides that such Common Stock shall be Registrable Securities,
(b) any shares of Common Stock issued pursuant to the terms of, and under the
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circumstances set forth in, Section 4, and (c) any securities issued or issuable
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with respect to any Common Stock referred to in the foregoing clauses (w) upon
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any conversion or exchange thereof, (x) by way of stock dividend or stock
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split, (y) in connection with a combination of shares, recapitalization, merger,
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consolidation or other reorganization or (z) otherwise, in all cases subject to
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the last paragraph of Section 3.3. As to any particular Registrable Securities,
once issued such securities shall cease to be Registrable Securities when (a) a
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registration statement (other than a Special Registration pursuant to which such
securities were issued by the Company) with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (b) such securities shall have been distributed to the public in
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reliance upon Rule 144, (c) such securities shall have been otherwise
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transferred, new certificates for such securities not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of such securities shall not require registration or
qualification of such securities under the Securities Act or any similar state
law then in force, or (d) such securities shall have ceased to be outstanding.
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"REGISTRATION EXPENSES": All expenses incident to the Company's
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performance of its obligations under or compliance with Section 3, including,
but not limited to, all registration and filing fees, all fees and expenses of
complying with securities or blue sky laws, all fees and expenses associated
with listing securities on exchanges or NASDAQ, all fees and other expenses
associated with filings with the NASD (including, if required, the fees and
expenses of any "qualified independent underwriter" and its counsel), all
printing expenses, the fees and disbursements of counsel for the
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Company and of its independent public accountants, and the expenses of any
special audits made by such accountants required by or incidental to such
performance and compliance, but not including (a) fees and disbursements of
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counsel retained by the holders of Registrable Securities or (b) any
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underwriting discounts or commissions or any transfer taxes payable in respect
of the sale of Registrable Securities by the holders thereof.
"REQUISITE PERCENTAGE OF STOCKHOLDERS": The holder or holders of
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at least (a) as to the initial request under Section 3.1, 50% (by number of
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shares) of the Registrable Securities at the time outstanding or (b) as to any
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other request, 20% (by number of shares) of the Registrable Securities at the
time outstanding.
"RULE 144": Rule 144 (or any successor provision) under the
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Securities Act.
"RULE 144A": Rule 144A (or any successor provision) under the
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Securities Act.
"SECURITIES ACT": The Securities Act of 1933, as amended, or any
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successor Federal statute, and the rules and regulations thereunder which shall
be in effect at the time. Any reference to a particular section thereof shall
include a reference to the corresponding section, if any, of any such successor
Federal statute, and the rules and regulations thereunder.
"SECURITIES AND EXCHANGE COMMISSION": The Securities and
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Exchange Commission or any other Federal agency at the time administering the
Securities Act or the Exchange Act .
"SPECIAL REGISTRATION": (a) The registration of shares of equity
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securities and/or options or other rights in respect thereof to be offered to
directors, members of management, employees, consultants or sales agents,
distributors or similar representatives of the Company or its direct or indirect
Subsidiaries, and/or Individual Investors or (b) the registration of equity
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securities and/or options or other rights in respect thereof solely on Form S-4
or S-8 or any successor form.
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3. REGISTRATION.
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3.1. REGISTRATION ON REQUEST.
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(a) REQUESTS. Subject to the provisions of Section 3.6, at any
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time or from time to time, the Requisite Percentage of Stockholders shall have
the right to make written requests that the Company effect registrations under
the Securities Act of all or part of the Registrable Securities of the holder or
holders making such request, which requests shall specify the intended method of
disposition thereof by such holder or holders.
(b) OBLIGATION TO EFFECT REGISTRATION. Upon receipt by the
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Company of any request for registration pursuant to Section 3.1(a), the Company
will promptly give written notice of such requested registration to all holders
of Registrable Securities, and thereupon will use its best efforts to effect the
registration under the Securities Act of
(i) the Registrable Securities which the Company has been so
requested to register pursuant to Section 3.1(a), and
(ii) all other Registrable Securities which the Company has been
requested to register by the holders thereof by written request given to
the Company within 30 days after the Company has given such written
notice (which request shall specify the intended method of disposition
of such Registrable Securities),
all to the extent required to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered. Notwithstanding the preceding sentence:
(x) the Company shall not be required to effect a registration
requested pursuant to Section 3.1(A) if (a) with respect to the first
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three such requests, the aggregate number of Registrable Securities
referred to in clauses (i) and (ii) of the preceding sentence to be
included in such registration shall be less than 22,300,000 shares and
(B) thereafter, the number of Registrable Securities to be so included
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shall be less than 11,150,000, PROVIDED, that in no event shall the
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Company be required to effect a registration requested pursuant to
Section 3.1(a) if the Board determines, in its good faith judgment,
after consultation with a firm of nationally recognized underwriters
that the aggregate net proceeds from the disposition of the Registrable
Securities for which registration has been so requested would be less
than $15,000,000.00; and
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(y) if the Board determines in its good faith judgment, after
consultation with a firm of nationally recognized underwriters, that
there will be an adverse effect on a then contemplated Public Offering,
the Requisite Percentage of Stockholders shall be given notice of such
fact and shall be deemed to have withdrawn such request and such
registration shall not be deemed to have been effected or requested
pursuant to this Section 3.1.
(c) REGISTRATION STATEMENT FORM. Each registration requested
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pursuant to this Section 3.1 shall be effected by the filing of a registration
statement on Form S-1, Form S-2 or Form S-3 (or any other form which includes
substantially the same information as would be required to be included in a
registration statement on such forms as presently constituted), the choice of
such form to be made by holders holding at least a majority (by number of
shares) of the Registrable Securities as to which registration has been
requested pursuant to this Section 3.1, unless the use of a specific or
different form is required by law.
(d) EXPENSES. The Company will pay all Registration Expenses in
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connection with the first five registrations effected pursuant to a request
under Sec tion 3.1(a). The Registration Expenses in connection with each other
registration, if any, requested under Section 3.1(a) shall be apportioned among
the holders whose Registrable Securities are then being registered, on the basis
of the respective amounts (by number of shares) of Registrable Securities then
being registered. However, in the case of each registration requested under
Section 3.1(a), the Company shall pay all amounts in respect of (a) any
allocation of salaries of personnel of the Company and its Subsidiaries or other
general overhead expenses of the Company and its Subsidiaries or other expenses
for the preparation of financial statements or other data normally prepared by
the Company and its Subsidiaries in the ordinary course of its business, (B)
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the expenses of any officers' and directors' liability insurance, (C) the
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expenses and fees for listing the securities to be registered on each exchange
on which similar securities issued by the Company are then listed or, if no such
securities are then listed, on an exchange selected by the Company or on NASDAQ
and (D) all fees associated with filings required to be made with the NASD
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(including, if required, the fees and expenses of any "qualified independent
underwriter" and its counsel). Notwithstanding the provisions of this Section
3.1(d) or of Section 3.2, each seller of Registrable Securities shall pay all
Registration Expenses to the extent required to be paid by such seller by
applicable law.
(e) INCLUSION OF OTHER SECURITIES. The Company shall not register
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securities (other than Registrable Securities) for sale for the account of any
Person other than the Company in any registration requested pursuant to Section
3.1(a) unless permitted to do so by the written consent of holders holding at
least a majority (by num-
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ber of shares) of the Registrable Securities proposed to be sold in such
registration which consent shall not unreasonably be withheld, it being
understood and agreed that such holders shall not be deemed to be unreasonable
if they in their good faith judgment believe that the inclusion of the
securities of any such other Person will adversely affect the price or
marketability of the shares such holders of Registrable Securities or the
Company propose to sell in such registration.
(f) EFFECTIVE REGISTRATION STATEMENT. A registration requested
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pursuant to Section 3.1(a) will not be deemed to have been effected unless it
has become effective for the period specified in Section 3.3(b). Notwithstanding
the preceding sentence, a registration requested pursuant to Section 3.1(a)
which does not become effective after the Company has filed a registration
statement with respect thereto solely by reason of the refusal to proceed of the
holder or holders of Registrable Securities requesting the registration shall be
deemed to have been effected by the Company at the request of such holder or
holders.
(g) PRO RATA ALLOCATION. If the holders of a majority (by number
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of shares) of the Registrable Securities for which registration is being
requested pursuant to Section 3.1(a) determine, based on consultation with the
managing underwriters or, in an offering which is not underwritten, with an
investment banker, that the number of securities to be sold in any such
offering should be limited due to market conditions or otherwise, holders of
Registrable Securities proposing to sell their securities in such registration
shall share pro rata in the number of securities being offered (as determined by
the holders holding a majority (by number of shares) of the Registrable
Securities for which registration is being requested in consultation with the
managing underwriters or investment banker, as the case may be) and registered
for their account, such sharing to be based on the number of Registrable
Securities as to which registration was requested by such holders and the number
of securities that the Company proposed to sell for its own account in such
offering, respectively.
3.2. INCIDENTAL REGISTRATION. If the Company at any time proposes
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to register any of its equity securities (as defined in the Exchange Act) under
the Securities Act (other than pursuant to Section 3.1 or pursuant to a Special
Registration), whether or not for sale for its own account, and the registration
form to be used may be used for the registration of Registrable Securities, it
will at such time give prompt written notice to all holders of Registrable
Securities of its intention to do so and, upon the written request of any holder
of Registrable Securities given to the Company within 30 days after the Company
has given any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such holder and the intended method of
disposition thereof), the Company will use its best efforts to effect the
registration under
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the Securities Act of all Registrable Securities which the Company has been so
requested to register by the holders thereof, to the extent required to permit
the disposition (in accordance with the intended methods thereof as aforesaid)
of the Registrable Securities so to be registered, PROVIDED that:
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(a) if such registration shall be in connection with the first
public offering of Common Stock following the Merger, the Company shall
not include any Registrable Securities in such proposed registration if
the Board shall have determined, after consultation with the managing
underwriters for such offering, that it is not in the best interests of
the Company to include any Registrable Securities in such registration,
PROVIDED that, if the Board makes such a determination, the Company
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shall not include in such registration any securities not being sold for
the account of the Company;
(b) if, at any time after giving written notice of its intention
to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Board shall determine for any reason not to register such securities,
the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities that was
previously notified of such registration and, thereupon, shall not
register any Registrable Securities in connection with such registration
(but shall nevertheless pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of any holder or
holders of Registrable Securities to request that a registration be
effected under Section 3.1; and
(c) if the Company shall be advised in writing by the managing
underwriters (or, in connection with an offering which is not
underwritten, by an investment banker) that in their or its opinion the
number of securities requested to be included in such registration
(whether by the Company, pursuant to this Section 3.2 or pursuant to any
other rights granted by the Company to a holder or holders of its
securities to request or demand such registration or inclusion of any
such securities in any such registration) exceeds the number of such
securities which can be sold in such offering,
(i) the Company shall include in such registration the
number (if any) of Registrable Securities so requested to be
included which in the opinion of such underwriters or investment
banker, as the case may be, can be sold and shall not include in
such registration any securities (other than securities being
sold by the Company, which shall have priority in being included
in such registration) so requested to be included other than
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Registrable Securities unless all Registrable Securities
requested to be so included are included therein, and
(ii) if in the opinion of such underwriters or investment
banker, as the case may be, some but not all of the Registrable
Securities may be so included, all holders of Registrable
Securities requested to be included therein shall share pro rata
in the number of shares of Registrable Securities included in
such public offering on the basis of the number of Registrable
Securities requested to be included therein by such holders,
PROVIDED that, in the case of a registration initially requested
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or demanded by a holder or holders of securities other than
Registrable Securities, pursuant to a contractual registration
obligation, the holders of the Registrable Securities requested
to be included therein and the holders of such other securities
shall share pro rata (based on the number of shares if the
requested or demanded registration is to cover only Common Stock
and, if not, based on the proposed offering price of the total
number of securities included in such public offering requested
to be included therein),
and the Company shall so provide in any registration agreement
hereinafter entered into with respect to any of its securities.
The Company will pay all Registration Expenses in connection with
each registration of Registrable Securities requested pursuant to this Section
3.2. No registration effected under this Section 3.2 shall relieve the Company
from its obligation to effect registrations upon request under Section 3.1.
3.3. REGISTRATION PROCEDURES. If and whenever the Company is
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required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 3.1 and 3.2, the
Company will promptly:
(a) subject to clauses (x), (y) and (z) of Section 3.1(b),
prepare and file with the Securities and Exchange Commission within 120
days, after receipt of a request pursuant to Section 3.1 a registration
statement with respect to such securities, make all required filings
with the NASD and use best efforts to cause such registration statement
to become effective;
(b) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith and such other documents as may
be necessary to
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keep such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such time as all
of such securities have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in
such registration statement, but in no event for a period of more than
six months after such registration statement becomes effective;
(c) furnish to counsel (if any) selected by the holders of a
majority (by number of shares) of the Registrable Securities covered by
such registration statement and to counsel for the underwriters in any
underwritten offering copies of all documents proposed to be filed with
the Securities and Exchange Commission (including all documents to be
filed on a confidential basis) in connection with such registration,
which documents will be subject to the review of such counsel;
(d) furnish to each seller of such securities, without charge,
such number of conformed copies of such registration statement and of
each such amendment and supplement thereto (in each case, including all
exhibits and documents filed therewith (other than those filed on a
confidential basis), except that the Company shall not be obligated to
furnish any seller of securities with more than two copies of such
exhibits and documents), such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and any summary prospectus) in conformity with the
requirements of the Securities Act, and such other documents, as such
seller may reasonably request in order to facilitate the disposition of
the securities owned by such seller;
(e) use its best efforts to register or qualify the securities
covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as each seller shall request, and do
any and all other acts and things which may be necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions
of the securities owned by such seller, except that the Company shall
not for any such purpose be required to qualify generally to do business
as a foreign corporation in any jurisdiction wherein it is not so
qualified, subject itself to taxation in any jurisdiction wherein it is
not so subject, or take any action which would subject it to general
service of process in any jurisdiction wherein it is not so subject;
(f) furnish to each seller a signed counterpart, addressed to the
sellers, of
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(i) an opinion of counsel for the Company experienced in
securities law matters, dated the effective date of the
registration statement, and
(ii) a "comfort" letter signed by the independent public
accountants who have issued an audit report on the Company's
financial statements included in the registration statement,
subject to such seller having executed and delivered to the
independent public accountants such certificates and documents as
such accountants shall reasonably request,
covering substantially the same matters with respect to the registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to the
underwriters in underwritten public offerings of securities;
(g) (i) notify each seller of any securities covered by such
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registration statement if such registration statement, at the time it or
any amendment thereto became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and, as promptly as practicable, prepare and file with the
Securities and Exchange Commission a post-effective amendment to such
registration statement and use best efforts to cause such post-effective
amendment to become effective such that such registration statement, as
so amended, shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and (ii) notify each
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holder of Registrable Securities covered by such registration
statement, at any time when a prospectus relating thereto is required to
be delivered under the Securities Act, if the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading,
and, as promptly as is practicable, prepare and furnish to such holder a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
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(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably
practicable, an earnings statement of the Company complying with the
provisions of Section 11 (a) of the Securities Act and Rule 158 under
the Securities Act;
(i) notify each seller of any securities covered by such
registration statement (i) when such registration statement, or any
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post-effective amendment to such registration statement, shall have
become effective, or any amendment of or supplement to the prospectus
used in connection therewith shall have been filed, (ii) of any request
by the Securities and Exchange Commission to amend such registration
statement or to amend or supplement such prospectus or for additional
information, (iii) of the issuance by the Securities and Exchange
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Commission of any stop order suspending the effectiveness of such
registration statement or of any order preventing or suspending the use
of any preliminary prospectus, and (iv) of the suspension of the
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qualification of such securities for offering or sale in any
jurisdiction, or of the institution of any proceedings for any of such
purposes;
(j) use its best efforts (i) (A) to list such securities on any
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securities exchange on which the Common Stock is then listed or, if no
Common Stock is then listed, on an exchange selected by the Company, if
such listing is then permitted under the rules of such exchange or (B)
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if such listing is not practicable or the Board determines that
quotation as a NASDAQ National Market System security is preferable, to
secure designation of such securities as a NASDAQ "national market
system security" within the meaning of Rule 11Aa2-1 under the Exchange
Act or, failing that, to secure NASDAQ authorization for such
securities, and, without limiting the foregoing, to arrange for at least
two market makers to register as such with respect to such securities
with the NASD, (ii) to provide a transfer agent and registrar for such
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Registrable Securities not later than the effective date of such
registration statement and (iii) to obtain a CUSIP number for the
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Registrable Securities; and
(k) use every reasonable effort to obtain the lifting of any stop
order that might be issued suspending the effectiveness of such
registration statement or of any order preventing or suspending the use
of any preliminary prospectus.
The Company may require each seller of any securities as to which
any registration is being effected to furnish to the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time
12
reasonably request in writing and as shall be required by law in connection
therewith. Each such holder agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such holder not materially misleading.
The Company agrees not to file or make any amendment to any
registration statement with respect to any Registrable Securities, or any
amendment of or supplement to the prospectus used in connection therewith, which
refers to any seller of any securities covered thereby by name, or otherwise
identifies such seller as the holder of any securities of the Company, without
the consent of such seller, such consent not to be unreasonably withheld, except
that no such consent shall be required for any disclosure that is required by
law.
By acquisition of Registrable Securities, each holder of such
Registrable Securities shall be deemed to have agreed that upon receipt of any
notice from the Com pany pursuant to Section 3.3(g), such holder will promptly
discontinue such holder's disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such holder
shall have received, in the case of clause (i) of Section 3.3(g), notice from
the Company that such registration statement has been amended, as contemplated
by Section 3.3(g), and, in the case of clause (ii) of Section 3.3(g), copies of
the supplemented or amended prospectus contemplated by Sec tion 3.3(g). If so
directed by the Company, each holder of Registrable Securities will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies, in such holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice. In the event that the Company
shall give any such notice, the period mentioned in Section 3.3(b) shall be
extended by the number of days during the period from and including the date of
the giving of such notice to and in cluding the date when each seller of any
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
Section 3.3(g).
Notwithstanding any other provision of this Agreement, the
parties hereto acknowledge that the Company shall have no obligation to prepare
or file any registration statement prior to the time that financial information
required to be included therein is available for inclusion therein.
3.4. UNDERWRITTEN OFFERINGS. The provisions of this Section 3.4
----------------------
do not establish additional registration rights but instead set forth procedures
applicable, in addi tion to those set forth in Sections 3.1 through 3.3, to any
registration which is an underwritten offering.
13
(a) UNDERWRITTEN OFFERINGS EXCLUSIVE. Whenever a registration
--------------------------------
requested pursuant to Section 3.1 is for an underwritten offering, only
securities which are to be distributed by the underwriters may be included in
the registration.
(b) UNDERWRITING AGREEMENT. If requested by the underwriters for
----------------------
any underwritten offering by holders of Registrable Securities pursuant to a
registration re quested under Section 3.1, the Company shall enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be reasonably satisfactory in sub stance and form to the holders of a
majority (by number of shares) of the Registrable Securities to be covered by
such registration and to the underwriters and to contain such representations
and warranties by the Company and such other terms and provisions as are
customarily contained in agreements of this type, including, but not limited to,
indemnities to the effect and to the extent provided in Section 3.7, provisions
for the delivery of officers' certificates, opinions of counsel and accountants'
"comfort" letters and hold-back arrangements. The holders of Registrable
Securities to be distributed by such underwriters shall be parties to such
underwriting agreement and may, at their option, require that any or all of the
representations and warranties by, and the agreements on the part of, the
Company to and for the benefit of such underwriters be made to and for the
benefit of such holders of Registrable Securities and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement shall also be conditions precedent to the obligations of
such holders of Registrable Securities. No such holder of Registrable Securities
shall be required by the Company to make any representations or warranties to,
or agreements with, the Company or the underwriters other than as set forth in
Section 3.4(e) and representations, warranties or agreements regarding such
holder and such holder's intended method of distribution.
(c) SELECTION OF UNDERWRITERS. Whenever a registration requested
-------------------------
pursuant to Section 3.1 is for an underwritten offering, the holders of a
majority of the shares requested to be included in such registration will have
the right to select one or more underwriters to administer the offering at least
one of which shall be an underwriter of nationally recognized standing
reasonably satisfactory to the Company. If the Company at any time proposes to
register any of its securities under the Securities Act for sale for its own
account and such securities are to be distributed by or through one or more
underwriters, the Company will have the right to select one or more underwriters
to administer the offering at least one of which shall be an underwriter of
nationally recognized standing.
(d) INCIDENTAL UNDERWRITTEN OFFERINGS. Subject to the provisions
---------------------------------
of the proviso to the first sentence of Section 3.2, if the Company at any time
proposes to regis-
14
ter any of its equity securities under the Securities Act (other than pursuant
to Section 3.1 or pursuant to a Special Registration), whether or not for its
own account, and such securities are to be distributed by or through one or more
underwriters, the Company will give prompt written notice to all holders of
Registrable Securities of its intention to do so and, if requested by any holder
of Registrable Securities, will arrange for such underwriters to include the
Registrable Securities to be offered and sold by such holder among those to be
distributed by such underwriters. The holders of Registrable Securities to be
distributed by such underwriters shall be parties to the underwriting agreement
between the Company and such underwriters and may, at their option, require that
any or all of the representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such underwriters shall also
be made to and for the benefit of such holders of Registrable Securities and
that any or all of the conditions precedent to the obligations of the
underwriters under such underwriting agreement shall also be conditions
precedent to the obligations of such holders of Regis trable Securities. No such
holder of Registrable Securities shall be required by the Company to make any
representations or warranties to, or agreements with, the Company or the
underwriters other than as set forth in Section 3.4(e) and representations,
warranties or agreements regarding such holder and such holder's intended method
of distribution.
(e) HOLD BACK AGREEMENTS. If and whenever the Company proposes to
--------------------
register any of its equity securities under the Securities Act, whether or not
for its own account (other than pursuant to a Special Registration), or is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act pursuant to Section 3.1 or 3.2, each holder
of Registrable Securities, if required by the managing underwriter, agrees by
acquisition of such Registrable Securities not to effect (other than pursuant to
such registration) any public sale or distribution, including, but not limited
to, any sale pursuant to Rule 144 or Rule 144A, of any Registrable Securities,
any other equity securities of the Company or any securities convertible into or
exchangeable or exercisable for any equity securities of the Company during the
20 day period prior to or the 90 day period following the effective date of such
registration, provided that each holder of Registrable Securities further agrees
that, if required by the managing underwriter for such registered offering, he
shall not effect any such public sale or distribution during the 180 day period
following the effective date of such registration, and the Company agrees to
cause each holder of any equity security, or of any security convertible into or
exchangeable or exercisable for any equity security, of the Company purchased or
acquired from the Company at any time other than in a Public Offering to enter
into a similar agreement with the Company. The Company will continue to file
timely and accurately all reports required by Sections 13(a) and 15(d) of the
Exchange Act, until the earlier to occur of (x) the fifth anniversary of the
date hereof
15
and (y) such time as the Common Stock is no longer registered under Section 12
of the Exchange Act.
3.5. PREPARATION; REASONABLE INVESTIGATION. In connection with
-------------------------------------
the preparation and filing of each registration statement registering
Registrable Securities under the Securities Act, the Company will give the
holders of such Registrable Securities so to be registered and their
underwriters, if any, and their respective counsel and accountants the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Securities and Exchange
Commission, and each amendment thereof or supplement thereto, and will give each
of them such access to its books and records and such opportunities to discuss
the business of the Company with its officers and the independent public
accountants who have issued audit reports on its financial statements as shall
be necessary, in the opinion of such holders' and such underwriters' respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
3.6. OTHER REGISTRATIONS. If and whenever the Company is required
-------------------
to use its best efforts to effect the registration of any Registrable Securities
under the Securities Act pursuant to Section 3.1 or 3.2, and if such
registration shall not have been withdrawn or abandoned, the Company shall not
be obligated to and shall not file any registration statement with respect to
any of its securities (including Registrable Securities) under the Securities
Act (other than a Special Registration), whether of its own accord or at the
request or demand of any holder or holders of such securities, until a period of
six months shall have elapsed from the effective date of such previous
registration.
3.7. INDEMNIFICATION.
---------------
(a) INDEMNIFICATION BY THE COMPANY. In the event of any
------------------------------
registration of any Registrable Securities under the Securities Act pursuant to
Section 3.1 or 3.2, the Company will indemnify and hold harmless the seller of
such securities, its directors, officers, and employees, each other person who
participates as an underwriter, broker or dealer in the offering or sale of such
securities and each other person, if any, who con trols such seller or any such
participating person within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, against any and all losses, claims,
damages or liabilities, joint or several, to which such seller or any such
director, officer, employee, participating person or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
-
statement of a fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary
16
prospectus, final prospectus or summary prospectus contained therein or related
thereto, or any amendment or supplement thereto, or (ii) any omission or alleged
omission to state a fact required to be stated in any such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement or necessary to make the statements therein not
misleading; and the Company will reimburse such seller and each such director,
officer, employee, participating person and controlling person for any legal or
any other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, liability, action or proceeding, PROVIDED
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such seller or participating person expressly for use in the
preparation thereof and PROVIDED, FURTHER, that the Company shall not be liable
-------- -------
in any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission in the prospectus, if such untrue
statement or alleged untrue statement or omission or alleged omission is
completely corrected in an amendment or supplement to the prospectus and the
seller of Registrable Securities thereafter fails to deliver such prospectus as
so amended or supplemented prior to or concurrently with the sale of Registrable
Securities to the person asserting such loss, claim, damage, liability or
expense after the Company had furnished such seller with a sufficient number of
copies of the same or if the seller received notice from the Company of the
existence of such untrue statement or alleged untrue statement or omission or
alleged omission and the seller continued to dispose of Registrable Securities
prior to the time of the receipt of either (a) an amended or supplemented
prospectus which completely corrected such untrue statement or omission or (b) a
notice from the Company that the use of the existing prospectus may be resumed.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any such director, officer,
employee, participating person or controlling person and shall survive the
transfer of such securities by such seller.
(b) INDEMNIFICATION BY THE SELLERS. In the event of any
------------------------------
registration of any Registrable Securities under the Securities Act pursuant to
Section 3.1 or 3.2, each of the prospective sellers of such securities, will
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who shall sign such registration statement, each other
person who participates as an underwriter, broker or dealer in the offering or
sale of such securities and each other person, if any, who controls the Company
or any such participating person within the meaning of Section 15
17
of the Securities Act or Section 20 of the Exchange Act, against any and all
losses, claims, damages or liabilities, joint or several, to which the Company
or any such director, officer, employee, participating person or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
-
untrue statement of a fact contained in any registration statement under which
such securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein or related
thereto, or any amendment or supplement thereto, if such statement or omission
was made in reliance upon and in conformity with written information furnished
to the Company by such seller expressly for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement or (ii) any omission or alleged omission to
--
state a fact with respect to such seller required to be stated in any such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement or necessary to make the statements therein
not misleading; and the seller will reimburse the Company and each such
director, officer, employee, participating person and controlling person for any
legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding, PROVIDED that the liability of each such seller will be in
--------
proportion to and limited to the net amount received by such seller (after
deducting any underwriting discount and expenses) from the sale of Registrable
Securities pursuant to such registration statement. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company or any such director, officer, participating person or controlling
person and shall survive the transfer of such securities by such seller.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
----------------------
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Section 3.7,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party hereunder, give written notice to the latter of the
commencement of such action, PROVIDED that the failure of any indemnified party
--------
to give notice as provided therein shall not relieve the indemnifying party of
its obligations under the preceding paragraphs of this Section 3.7. In case any
such action is brought against an indemnified party, the indemnifying party will
be entitled to participate therein and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof,
18
PROVIDED that if such indemnified party and the indemnifying party reasonably
--------
determine, based upon advice of their respective independent counsel, that a
conflict of interest may exist between the indemnified party and the
indemnifying party with respect to such action and that it is advisable for such
indemnified party to be represented by separate counsel, such indemnified party
may retain other counsel, reasonably satisfactory to the indemnifying party, to
represent such indemnified party, and the indemnifying party shall pay all
reasonable fees and expenses of such counsel. No indemnifying party, in the
defense of any such claim or litigation, shall, except with the consent of such
indemnified party, which consent shall not be unreasonably withheld, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that
---------------------
specified in the preceding paragraphs of this Section 3.7 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
such Registrable Securities under any Federal or state law or regulation of
governmental authority other than the Securities Act.
(e) OTHER REMEDIES. If for any reason the foregoing indemnity is
--------------
unavailable, or is insufficient to hold harmless an indemnified party, other
than by reason of the exceptions provided therein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages, liabilities or expenses (i) in such
-
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other from
the offering of Registrable Securities (taking into account the portion of the
proceeds of the offering realized by each such party) or (ii) if the alloca tion
--
provided by clause (i) above is not permitted by applicable law, or provides a
lesser sum to the indemnified party than the amount hereinafter calculated, in
such proportion as is appropriate to reflect not only the relative benefits
received by the indemnifying party on the one hand and the indemnified party on
the other but also the relative fault of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. No party shall be
liable for contribution under this Section 3.7(e) except to the extent and under
such circumstances as such party would have been liable to indemnify under this
Section 3.7 if such indemnification were enforceable under applicable law.
19
(f) OFFICERS AND DIRECTORS. As used in this Section 3.7, the
----------------------
terms "officers" and "directors" shall include the partners of the holders of
Registrable Securities which are partnerships and the trustees and
beneficiaries of the holders of Registrable Securities which are trusts.
4. MISCELLANEOUS.
-------------
4.1. AMENDMENTS AND WAIVERS. This Agreement may be amended, and
----------------------
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of the holder
or holders of at least 66% of the shares then constituting Registrable
Securities PROVIDED that this Agreement may not be amended in a manner adversely
--------
affecting any holder of Registrable Securities which does not adversely affect
all holders of Registrable Securities without the consent of such holder. Each
holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any consent authorized by this Section 5.1, whether or not such
Registrable Securities shall have been marked to indicate such consent. No
amendment , modification or discharge of this Agreement, and no waiver
hereunder, shall be valid or binding unless set forth in writing. Any such
waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party or
parties granting such waiver in any other respect or at any other time.
4.2. NOMINEES FOR BENEFICIAL OWNERS. In the event that any
------------------------------
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election and unless notice is otherwise
given to the Company by the record owner, be treated as the holder of such
Registrable Securities for purposes of any request or other action by any holder
or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Securities.
4.3. SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall be
-----------------------------------
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent holder of any Registrable
Securities, subject to the provisions respecting the
20
minimum numbers or percentages of shares of Registrable Securities required in
order to be entitled to certain rights, or take certain actions, contained
herein.
4.4. NOTICES. All notices and other communications required or
-------
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if delivered personally or sent by certified or
express mail, return receipt requested, postage prepaid, or by any recognized
international equivalent of such delivery, to the Company, the Fund or the
Manager, as the case may be, at the following addresses or to such other address
as the Company, the Fund or the Manager, as the case may be, shall specify by
notice to the others:
(i) if to the Company, to it at:
-
Dynatech Corporation
3 New England Executive Park
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: General Counsel
---------
(ii) if to the Manager or the Trusts, to the address of the
--
Manager set forth on the signature page hereof.
(iii) if to the Fund, to:
---
The ▇▇▇▇▇▇▇ & Dubilier Private Equity
Fund V Limited Partnership
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
---------
All such notices and communications shall be deemed to have been received on the
date of delivery if delivered personally or on the third business day after the
mailing thereof. Copies of any notice or other communication given under this
Agreement shall also be given to:
▇▇▇▇▇▇▇, Dubilier & Rice, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
---------
21
and
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
---------
and
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
---------
4.5. NO INCONSISTENT AGREEMENTS. The Company will not hereafter
--------------------------
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Securities by this
Agreement.
4.6. REMEDIES; ATTORNEYS' FEES. Each holder of Registrable
-------------------------
Securities, in addition to being entitled to exercise all rights provided herein
or granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of any provision of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
4.7. STOCK SPLITS, ETC. Each party hereto agrees that it will
-----------------
vote to effect a stock split (forward or reverse, as the case may be) with
respect to any Registrable Securities in connection with any registration of
such Registrable Securities hereunder, or otherwise, if the managing underwriter
shall advise the Company in writing (or, in connection with an offering that is
not underwritten, if an investment banker shall advise the Company in writing)
that in their or its opinion such a stock split would facilitate or increase the
likelihood of success of the offering. Each party hereto agrees that any number
of shares of Common Stock referred to in this Agreement shall be equitably
adjusted to reflect any stock split, stock dividend, stock combination,
recapitalization or similar transaction.
4.8. TERM. This Agreement shall be effective as of the date
----
hereof and shall continue in effect thereafter until the earliest of (a) its
-
termination by the consent of the parties hereto or their respective successors
in interest, (b) the date on which no
-
22
Registrable Securities remain outstanding, (c) the dissolution, liquidation or
-
winding up of the Company and (d) the tenth anniversary of the date hereof.
-
4.9. SEVERABILITY. If any provision of this Agreement is
------------
inoperative or unenforceable for any reason, such circumstances shall not have
the effect of rendering the provision in question inoperative or unenforceable
in any other case or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative, or unenforceable to any extent
whatsoever. The invalidity of any one or more phrases, sentences, clauses,
Sections or subsections of this Agreement shall not affect the remaining
portions of this Agreement.
4.10. HEADINGS. The headings contained in this Agreement are for
--------
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
4.11. COUNTERPARTS. This Agreement may be executed in several
------------
counterparts, each of which shall be deemed an original and all of which
together constitute one and the same instrument.
4.12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS 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
4.13. NO THIRD PARTY BENEFICIARIES. Except as provided in
----------------------------
Sections 3.7 and 5.3, nothing in this Agreement shall confer any rights upon any
person or entity other than the parties hereto, each such party's respective
successors and permitted assigns.
4.14. CONSENT TO JURISDICTION. Each party irrevocably submits to
-----------------------
the exclusive jurisdiction of (a) the Supreme Court of the State of New York,
-
New York County, and (b) the United States District Court for the Southern
-
District of New York, for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby (and agrees
not to commence any such suit, action or proceeding except in such courts). Each
party further agrees that service of any process, summons, notice or document by
U.S. registered mail to such party's respective address set forth above shall be
effective service of process for any such suit, action or proceeding. Each party
irrevocably and unconditionally waives any objection to the laying of venue of
any such suit, action or proceeding in (i) the Supreme Court of the
-
23
State of New York, New York County, and (ii) the United States District Court
for the Southern District of New York, that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
4.15. WAIVER OF JURY TRIAL. Each party hereby waives, to the
--------------------
fullest extent permitted by applicable law, any right it may have to a trial by
jury in respect of any suit, action or proceeding arising out of this Agreement
or any transaction contemplated hereby. Each party (a) certifies that no
-
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (b) acknowledges that it and the other
-
parties have been induced to enter into the Agreement by, among other things,
the mutual waivers and certifications in this Section 5.15.
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
DYNATECH CORPORATION
By:
----------------------
Name:
Title:
▇▇▇▇▇▇▇, DUBILIER & RICE
FUND V LIMITED PARTNERSHIP
By: CD&R Associates V
Limited Partnership, its
general partner
By: CD&R Investment Associates II,
Inc., a general partner
By:
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Chairman
24
▇▇. ▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Address
--------------------
--------------------
--------------------
THE ▇▇▇▇ ▇. ▇▇▇▇ 1997 QUALIFIED ANNUITY
TRUST UNDER TRUST AGREEMENT DATED AS
OF THE 28TH DAY OF NOVEMBER, 1997
By:
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Trustee
By:
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Trustee
THE ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 1997 QUALIFIED
ANNUITY TRUST UNDER TRUST AGREEMENT
DATED AS OF THE 28TH DAY OF NOVEMBER,
1997
By:
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Trustee
By:
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Trustee
25