Exhibit 10.19
[Execution Copy]
$275,000,000
DYNATECH CORPORATION
TTC MERGER CO. LLC
(A COMPANY TO BE MERGED INTO
TELECOMMUNICATIONS TECHNIQUES CO., LLC)
9 3/4% SENIOR SUBORDINATED NOTES DUE 2008
PURCHASE AGREEMENT
------------------
May 14, 1998
Credit Suisse First Boston Corporation
▇.▇. ▇▇▇▇▇▇ Securities Inc.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Dynatech Corporation, a Massachusetts corporation
("Dynatech" or the "Company") and its wholly owned subsidiary TTC Merger Co.
LLC, a Delaware limited liability company ("TTC Merger Co" and, together with
Dynatech, the "Initial Issuers") propose, subject to the terms and conditions
stated herein, to issue and sell to Credit Suisse First Boston Corporation
("CSFBC") and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (the "Initial Purchasers")
U.S.$275,000,000 principal amount of its 9 3/4% Senior Subordinated Notes Due
2008 (the "Notes") to be issued under an indenture dated as of May 21, 1998 (the
"Indenture") among Dynatech, TTC Merger Co, and State Street Bank and Trust
Company, a Massachusetts trust company, as Trustee (the "Trustee"). Immediately
after the issuance of the Notes on the Closing Date (as defined in Section 3
below), (i) TTC Merger Co will be merged into Telecommunications Techniques Co.,
LLC, a Delaware limited liability company to be formed prior to the Closing Date
(as defined below) ("TTC"), with TTC as the surviving company (the "Second
Merger"), (ii) TTC will succeed to and assume all of the obligations under the
Indenture and the Notes and (iii) Dynatech will be released from its obligations
as a primary obligor under the Indenture and the Notes. Dynatech will guarantee
the monetary obligations of TTC Merger Co and TTC under the Indenture, on a
senior subordinated basis (the "Parent Guarantee"). On the Closing Date TTC,
Dynatech and the trustee will enter into a supplement to the Indenture, dated as
of the Closing Date (the "First Supplemental Indenture") whereby TTC will
confirm its assumption of all of the obligations under the Indenture and
Dynatech will confirm its obligations under the Parent Guarantee. As a result
of the Second Merger and other transactions related thereto, TTC will be a
wholly-owned subsidiary of Dynatech and the direct or indirect parent company of
all of Dynatech's other active subsidiaries, including Itronix Corporation, a
Washington corporation ("Itronix"),
Industrial Computer Source Inc., a California corporation ("ICS"), AIRSHOW Inc.,
a California corporation ("AIRSHOW") and da Vinci Systems, Inc., a Florida
corporation ("da Vinci"). TTC, Itronix ICS, AIRSHOW and da Vinci are
collectively referred to as the "Subsidiaries" of the Company.
The Notes have not been registered under the U.S. Securities Act of 1933,
as amended (the "Securities Act"), and may be offered and sold only (1) outside
the United States in reliance on Regulation S under the Securities Act
("Regulation S") and (2) in the United States to qualified institutional buyers
(as defined in Rule 144A under the Securities Act) in reliance on Rule 144A
under the Securities Act ("Rule 144A") (such Notes to be represented by one or
more global Notes in registered form).
Holders (including the Initial Purchasers and their direct and indirect
transferees) of the Notes will be entitled to the benefits of a Registration
Rights Agreement, substantially in the form attached hereto as Annex I (the
"Registration Rights Agreement"), pursuant to which Dynatech and TTC each will
agree to use its reasonable best efforts to file with the Securities and
Exchange Commission (the "Commission") (i) a registration statement under the
Securities Act (the "Exchange Offer Registration Statement") registering an
issue of senior subordinated notes of TTC (including the Parent Guarantee) (the
"Exchange Securities") which are identical in all material respects to the Notes
(except that the Exchange Securities will not contain terms with respect to
transfer restrictions or with respect to additional interest) and (ii) under
certain circumstances, a shelf registration statement pursuant to Rule 415 under
the Securities Act (the "Shelf Registration Statement").
2. Representations and Warranties of the Company and TTC Merger Co. Each
Initial Issuer represents and warrants to the Initial Purchasers that:
(a) A preliminary offering circular and an offering circular relating
to the Notes has been prepared by the Company. Such preliminary offering
circular and offering circular, as supplemented as of the date of this
Agreement, are hereinafter collectively referred to as the "Offering
Circular". On the date of this Agreement, the Offering Circular does not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Offering Circular based upon written
information furnished to the Company by any Initial Purchaser through CSFBC
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(b).
(b) When the Notes are delivered and paid for pursuant to this
Agreement on the Closing Date, the Indenture will have been duly
authorized, executed and delivered by the Initial Issuers, the First
Supplemental Indenture will have been duly authorized, and (on the Closing
Date after the consummation of the Second Merger) executed and delivered by
Dynatech and TTC, such Notes will have been duly authorized, executed,
issued and delivered by the Initial Issuers and will conform to the
description thereof contained in the Offering Circular in all material
respects, and the Indenture and such Notes will constitute valid and
legally binding obligations of
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each Initial Issuer (and, upon the consummation of the Second Merger and
the due authorization of the First Supplemental Indenture by TTC and the
execution and delivery thereof by each party thereto, of TTC), enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(c) The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Massachusetts,
with corporate power and authority to own its properties and conduct its
business as described in the Offering Circular; and the Company is duly
qualified to do business as a foreign corporation in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification, except in such jurisdiction in
which the failure to so qualify would not reasonably be expected to have a
material adverse effect on the business, properties, results of operations
or condition (financial or other) of the Company and the Company's
consolidated subsidiaries taken as a whole (a "Material Adverse Effect");
TTC Merger Co has been and TTC, on or prior to the Closing Date, will be,
duly organized and is or in the case of TTC will be a validly existing
limited liability company in good standing under the laws of the State of
Delaware, with limited liability company power and authority to own its
properties and conduct its business as described in the Offering Circular;
and each of TTC Merger Co and TTC is or will be on or prior to the Closing
Date duly qualified to do business as a foreign corporation in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification (except as would not reasonably be
expected to have a Material Adverse Effect).
(d) Each Subsidiary of the Company (other than TTC) has been duly
incorporated and is validly existing in good standing under the laws of the
jurisdiction of its incorporation or organization, with corporate power and
authority to own its properties and conduct its business as described in
the Offering Circular; and each such Subsidiary of the Company is duly
qualified to do business as a foreign corporation in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification (except as would not reasonably be
expected to have a Material Adverse Effect); all of the issued and
outstanding capital stock of each such Subsidiary of the Company has been
duly authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each such Subsidiary is owned by the Company, directly
or through subsidiaries, free and clear of any lien, encumbrance, defect,
charge, security interest, restriction upon voting or transfer or any other
claim of any third party, except as (i) would not reasonably be expected to
have a Material Adverse Effect or (ii) may arise pursuant to the Senior
Credit Facility (as defined in the Offering Circular) in connection with
the transactions contemplated thereunder.
(e) This Agreement has been duly authorized, executed and delivered by
each Initial Issuer and on the Closing Date, an agreement or instrument
(the "Purchase Agreement Supplement") by which TTC will assume all
obligations and acquire all
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rights of TTC Merger Co under this Agreement and become a party to this
Agreement will be duly authorized, executed and delivered by TTC.
(f) On the Closing Date, the Registration Rights Agreement will have
been duly authorized, executed and delivered by Dynatech and TTC and, upon
such execution and delivery, will constitute the valid and legally binding
obligation of Dynatech and TTC, enforceable in accordance with its terms,
subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization
moratorium and similar laws relating to or affecting creditors' rights and
to general equitable principles and (ii) limitations with respect to
enforceability of provisions providing for indemnification or contribution,
arising under applicable law (including court decisions) or public policy.
(g) The Offering Circular, as of its respective date, contains all of
the information that, if requested by a prospective purchaser of the Notes,
would be required to be provided to such prospective purchaser pursuant to
Rule 144A(d)(4) under the Securities Act.
(h) No consent, approval, authorization, or order of, or filing,
registration or qualification with, any governmental agency or body or any
court or arbitrator is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance and sale of
the Notes by the Company, TTC Merger Co or TTC and the Exchange Securities
by TTC, except for (i) such consents, approvals, authorizations, filings,
registrations or qualifications as may be required to be obtained or made
under the Securities Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and applicable state securities laws as provided in
the Registration Rights Agreement, (ii) such consents, approvals,
authorizations, orders or filings as have been made or obtained, or (iii)
as disclosed in the Offering Circular.
(i) The execution, delivery and performance of this Agreement, the
Registration Rights Agreement, the Indenture and the First Supplemental
Indenture (collectively, the "Transaction Documents"), and the issuance,
authentication, sale and delivery of the Notes and compliance with the
terms and provisions thereof (A) will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
Subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, (B) will not result in any
violation of the provisions of the charter or by-laws, or equivalent
constituent documents, of the Company or any of its Subsidiaries and (C)
will not result in the violation of the provisions of any statute or any
judgment, order, decree, rule or regulation of any court or arbitrator or
governmental agency or body having jurisdiction over the Company or any of
its Subsidiaries or any of their respective properties or assets, except in
each case under clauses (A), (B) and (C) where such breach, violation,
default, lien, charge or encumbrance would not reasonably be expected to
have a Material Adverse Effect; and, on the Closing Date, each of the
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Company, TTC Merger Co and TTC will have corporate or limited liability
company power and authority (i) to execute and deliver the Transaction
Documents to which it is a party, (ii) (in the case of the Initial Issuers)
to authorize, issue, sell and (in the case of the Company) guarantee the
Notes as contemplated by this Agreement and (iii) (in the case of TTC) to
succeed to and assume all of the primary obligations of TTC Merger Co and
the Company under the Indenture and the Notes as contemplated by the First
Supplemental Indenture.
(j) Each Transaction Document conforms in all material respects to the
descriptions thereof contained in the Offering Circular.
(k) Except as disclosed in the Offering Circular, the Company and its
Subsidiaries have or (in the case of TTC) on the Closing Date will have
good and marketable title to all real properties and good and valid title
to all other properties and assets owned by them, in each case free from
liens, encumbrances and defects not permitted by the Indenture, except for
such failures to have such title and for such liens, encumbrances and
defects as would not reasonably be expected to have a Material Adverse
Effect; and except as disclosed in the Offering Circular, the Company and
its Subsidiaries hold any leased real or personal property under valid and
enforceable leases, except as would not reasonably be expected to have a
Material Adverse Effect.
(l) The Company and its Subsidiaries possess or (in the case of TTC)
on the Closing Date will possess adequate licenses, certificates,
authorities or permits issued by and have made all material declarations
and filings with, the appropriate governmental agencies or bodies necessary
or desirable for the ownership of their properties or to conduct the
business now operated by them except for any that must be transferred or
reapplied for as a result of the merger of any entity with TTC or the
merger of TTC and TTC Merger Co, and except as would not reasonably be
expected to have a Material Adverse Effect and have not received any notice
of proceedings relating to the revocation or modification of any such
license, certificate, authority or permit that would individually or in the
aggregate reasonably be expected to have a Material Adverse Effect.
(m) No labor dispute with the employees of the Company or any
Subsidiary thereof exists or, to the best knowledge of the Company or TTC
Merger Co is contemplated or threatened that would reasonably be expected
to have a Material Adverse Effect.
(n) Except as disclosed in the Offering Circular, (i) the Company and
its Subsidiaries own, possess or can acquire or (in the case of TTC) on the
Closing Date will own, possess, or be able to acquire all adequate rights
to use all material trademarks, service marks, trademark registrations,
service ▇▇▇▇ registrations, trade names and other rights to inventions,
know-how, patents, patent applications, copyrights, licenses and other
intellectual property, including (without limitation) trade secrets and
other unpatented and/or patentable proprietary or confidential information,
systems or procedures, (collectively, "intellectual property rights")
necessary to
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conduct the business now operated by them, or presently employed by them,
except to the extent that the failure to own, possess or acquire such
adequate rights would not reasonably be expected to have a Material Adverse
Effect and (ii) no claim has been asserted and is pending claiming that the
intellectual property rights infringe on or conflict with asserted rights
of others that would individually or in the aggregate reasonably be
expected to have a Material Adverse Effect.
(o) Except as disclosed in the Offering Circular, neither the Company
nor any of its Subsidiaries is in violation of any applicable statute,
rule, regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any applicable
environmental laws, is liable for any off-site disposal or contamination
pursuant to any applicable environmental laws, or is subject to any claim
relating to any applicable environmental laws, which violation,
contamination, liability or claim would individually or in the aggregate
reasonably be expected to have a Material Adverse Effect.
(p) Except as disclosed in the Offering Circular, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their properties that would individually or in the
aggregate reasonably be expected to have a Material Adverse Effect or would
materially and adversely affect the ability of the Company, TTC Merger Co
or (after the Second Merger) TTC to perform their obligations under the
Indenture (as supplemented by the First Supplemental Indenture in the case
of the Company and TTC) or this Agreement.
(q) The historical consolidated financial statements (including the
related notes) contained in the Offering Circular have been prepared in
accordance with generally accepted accounting principles in the United
States consistently applied throughout the periods covered thereby except
as disclosed in the notes thereto and fairly present in all material
respects the financial position of the entities purported to be covered
thereby at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated; the
assumptions used in preparing the pro forma financial statements included
in the Offering Circular provide a reasonable basis for presenting the
estimated effects of the transactions or events described therein; and the
related pro forma adjustments give appropriate effect to those assumptions,
and the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(r) Except as disclosed in the Offering Circular, since the date of
the latest audited financial statements included in the Offering Circular,
there has not been any development or event that would reasonably be
expected to have a Material Adverse Effect.
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(s) Neither of the Initial Issuers is and TTC will not be an open-end
investment company, unit investment trust or face-amount certificate
company that is required to be registered under Section 8 of the United
States Investment Company Act of 1940, as amended (the "Investment Company
Act"); and neither Initial Issuer is and, after giving effect to the
offering and sale of the Notes and the application of the proceeds thereof
as described in the Offering Circular, neither Initial Issuer nor TTC will
be an "investment company" as defined in the Investment Company Act that is
required to be registered as such thereunder.
(t) No securities of the Initial Issuers of the same class (within the
meaning of Rule 144A(d)(3) under the Securities Act) as the Notes are
listed on any national securities exchange registered under Section 6 of
the Exchange Act or quoted in a U.S. automated inter-dealer quotation
system.
(u) The offer and sale of the Notes by the Initial Issuers to the
Initial Purchasers in the manner contemplated by this Agreement will be
exempt from the registration requirements of the Securities Act by reason
of Section 4(2) thereof and Regulation S thereunder; and it is not
necessary to qualify the Indenture in respect of the Notes under the United
States Trust Indenture Act; provided that the foregoing representation and
warranty assumes the accuracy of the representations, warranties and
agreements of the Initial Purchasers contained in Section 4 hereof.
(v) Neither of the Initial Issuers, nor any of their affiliates, nor
any person acting on their behalf (i) has, within a six-month period prior
to the date hereof, offered or sold in the United States or to any U.S.
person (as such term is defined in Regulation S) the Notes or any security
of the same class or series as the Notes or (ii) has offered or will offer
or sell the Notes (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under
the Securities Act or (B) with respect to any securities sold in reliance
on Rule 903 of Regulation S, by means of any directed selling efforts
within the meaning of Rule 902(c) of Regulation S. Each of the Initial
Issuers, any of their affiliates or any person acting on their behalf has
complied and will comply with the offering restrictions requirement of
Regulation S. The Initial Issuers and TTC have not entered and will not
enter into any contractual arrangement with respect to the distribution of
the Notes except for this Agreement prior to its termination.
(w) On the Closing Date, each of the Company, TTC Merger Co and TTC
(immediately after and giving effect to the issuance and assumption of the
Notes and to the other transactions related thereto as described in the
Offering Circular) will be Solvent. As used in this paragraph, the term
"Solvent" means, with respect to a particular entity and to a particular
date, that on such date (a) on a pro forma basis, the present fair market
value (or present fair saleable value) of such entity's assets is not less
than the Company's probable liabilities (including contingent liabilities);
(b) such entity should be able to pay its debts as they become absolute and
mature; and (c) the capital remaining in such entity would not be
unreasonably small for the business in which such entity is engaged after
giving due consideration to the prevailing practice in the industry in
which such entity is engaged. In computing the
7
amount of such contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
(x) Neither the Company nor any of its Subsidiaries is a party to any
contract, agreement or understanding with any person that would give rise
to a valid claim against the Initial Purchasers for a brokerage commission,
finder's fee or like payment in connection with the offering and sale of
the Notes, other than the fees payable to the Initial Purchasers in
connection with the offer and sale of the Notes.
(y) The Initial Issuers, TTC and their affiliates have not taken and
will not take, directly or indirectly, any action prohibited by Regulation
M under the Exchange Act in connection with the offering of the Notes.
(z) Except as disclosed in the Offering Circular, the proceeds to the
Initial Issuers from the offering of the Notes will not be used to purchase
or carry any security.
(aa) Neither the Initial Issuers nor any of the Subsidiaries is (i) in
violation of its charter or by-laws, (ii) in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which it is a party or by which it is bound or to which any
of its property or assets is subject or (iii) in violation in any material
respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject, except in each
case of clauses (i), (ii) and (iii) above, as would not reasonably be
expected to have a Material Adverse Effect.
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and TTC Merger Co agree to
sell to the Initial Purchasers, and the Initial Purchasers agree, severally and
not jointly, to purchase from the Company and TTC Merger Co, at a purchase price
of (x) 97% of the principal amount thereof plus (y) accrued interest from May
21, 1998 to the Closing Date (as hereinafter defined) the respective principal
amounts of Notes set forth opposite the names of the Initial Purchasers in
Schedule A hereto.
The Company and TTC Merger Co will deliver the Notes to CSFBC for the
accounts of the Initial Purchasers against payment of the purchase price in
Federal (same day) funds by wire transfer to an account at a bank acceptable to
CSFBC drawn to such order as the Company may direct, at the office of Debevoise
& ▇▇▇▇▇▇▇▇, at 10:00 A.M., New York time, on May 21, 1998 or at such other time
not later than seven full business days thereafter as CSFBC and the Company
determine, such time being herein referred to as the "Closing Date." The Notes
so to be delivered will be in definitive fully registered, global book entry
form, and will be made available for checking and packaging at the above office
of Debevoise & ▇▇▇▇▇▇▇▇ on the Closing Date.
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4. Representations by Initial Purchasers; Resale by Initial Purchasers.
(a) Each Initial Purchaser severally, and not jointly, represents and warrants
to the Company that it is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
(b) Each Initial Purchaser severally acknowledges that the Notes have not
been registered under the Securities Act and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons except
in accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. Each Initial Purchaser
severally represents and agrees that it has offered and sold the Notes and will
offer and sell the Notes only in accordance with Rule 903 or Rule 144A under the
Securities Act ("Rule 144A"). Accordingly, neither such Initial Purchaser nor
its affiliates, nor any persons acting on its or their behalf, has engaged or
will engage in any directed selling efforts with respect to the Notes, and such
Initial Purchaser, its affiliates and all persons acting on its or their behalf
has complied and will comply with the offering restrictions requirement of
Regulation S. Each Initial Purchaser severally agrees that, at or prior to
confirmation of sale of the Notes, other than a sale pursuant to Rule 144A, such
Initial Purchaser will have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration that purchases the Notes from it
during the distribution compliance period a confirmation or notice to
substantially the following effect:
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered
or sold within the United States or to, or for the account or benefit
of, U.S. persons as part of their distribution at any time except in
either case in accordance with Regulation S (or Rule 144A if
available) under the Securities Act. Terms used above have the
meanings given to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by Regulation
S.
(c) Each Initial Purchaser severally, and not jointly, agrees that it and
each of its affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Notes except for any such
arrangements with the other Initial Purchaser or affiliates of the other Initial
Purchaser or with the prior written consent of the Company.
(d) Each Initial Purchaser severally, and not jointly, agrees that it and
each of its affiliates will not offer or sell the Notes in the United States by
means of any form of general solicitation or general advertising, within the
meaning of Rule 502(c) under the Securities Act, including, but not limited to
(i) any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Initial Purchaser severally agrees,
with respect to resales made in reliance on Rule 144A of any of the Notes, to
deliver either with the confirmation of such resale or otherwise prior to
settlement of such resale a notice to the effect that the resale of such Notes
has been made in reliance upon the exemption from the registration requirements
of the Securities Act provided by Rule 144A.
9
(e) Prior to or simultaneously with any confirmation of sale to any
purchaser in the initial resale, each Initial Purchaser will deliver to each
such purchaser of the Notes in connection with its original distribution of the
Notes a copy of the Offering Circular as amended and supplemented at the date of
such delivery.
(f) Each of the Initial Purchasers severally represents and agrees that (i)
it has not offered or sold and prior to the date six months after the date of
issue of the Notes will not offer or sell any Notes to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has complied and will comply with all applicable provisions of the Financial
Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation to the Notes
in, from or otherwise involving the United Kingdom; and (iii) it has only issued
or passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Notes to a person who is of a
kind described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
5. Certain Agreements of the Company and TTC Merger Co. Each of the
Initial Issuers, jointly and severally, agrees with the Initial Purchasers that:
(a) The Initial Issuers will advise CSFBC promptly of any proposal to
amend or supplement the Offering Circular and will not effect such
amendment or supplementation without CSFBC's consent (which consent shall
not be reasonably withheld). If, at any time prior to the completion of
the resale of the Notes by the Initial Purchasers any event occurs as a
result of which the Offering Circular as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if it is necessary at any such time to amend or supplement the Offering
Circular to comply with any applicable law, the Initial Issuers promptly
will notify CSFBC of such event and promptly will prepare, at their own
expense, an amendment or supplement which will correct such statement or
omission or effect such compliance. Neither CSFBC's consent to, nor the
Initial Purchasers' delivery to offerees or investors of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6.
(b) The Initial Issuers will furnish to the Initial Purchasers or
their counsel copies of any preliminary offering circular, the Offering
Circular and all amendments and supplements to such documents, in each case
as soon as available and in such quantities as the Initial Purchasers or
their counsel reasonably request. At any time when the Notes are
outstanding and are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act and the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Initial Issuers will promptly
furnish or cause to be furnished to CSFBC (and, upon request, to the other
Initial Purchasers) and, upon
10
request of holders and prospective purchasers of the Notes, to such holders
and purchasers, copies of the information required to be delivered to
holders and prospective purchasers of the Notes pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in order to
permit compliance with Rule 144A in connection with resales by such holders
of the Notes. The Initial Issuers will pay the expenses of printing and
distributing to the Initial Purchasers and their counsel all such
documents.
(c) The Initial Issuers will arrange for the qualification of the
Notes for sale and the determination of their eligibility for investment
under the laws of such states in the United States as CSFBC reasonably
designates and will continue such qualifications in effect so long as
reasonably required for the initial resale of the Notes by the Initial
Purchasers; provided that the Initial Issuers will not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any such state or other jurisdiction or to subject themselves to
taxation in respect of doing business in any state or other jurisdiction in
which they are not otherwise so subject.
(d) During the period of two years after the Closing Date, the Company
will, upon request, make available to CSFBC, and the other Initial
Purchasers and any holder of Notes a copy of the restrictions on transfer
applicable to the Notes.
(e) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Notes that have been
reacquired by any of them, except for Notes purchased by the Company or any
of its affiliates and resold in a transaction registered under the
Securities Act.
(f) The Initial Issuers will pay all reasonable expenses incidental to
the performance of their obligations under this Agreement, the Indenture
(as supplemented by the First Supplemental Indenture) and the Registration
Rights Agreement including (i) the fees and expenses of the Trustee and its
professional advisers; (ii) all expenses in connection with the execution,
issue, authentication, packaging and initial delivery of the Notes, the
preparation, printing and distribution of this Agreement, the Notes, the
Indenture, the First Supplemental Indenture, the Registration Rights
Agreement, the Offering Circular and amendments and supplements thereto,
and any other document relating to the issuance, offer, sale and delivery
of the Notes; (iii) the cost of qualifying the Notes for trading in The
Portal/SM/ Market ("PORTAL") of The Nasdaq Stock Market, Inc. and any
expenses incidental thereto (iv) the cost of any advertising approved by
the Initial Issuers in connection with the issue of the Notes, (v) for any
expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Notes for sale under the laws of such
jurisdictions in the United States as CSFBC reasonably designates and the
printing of memoranda relating thereto, (vi) for any fees charged by
investment rating agencies for the rating of the Notes, (vii) for expenses
incurred in distributing preliminary offering circulars and the Offering
Circular (including any amendments and supplements thereto) to the Initial
Purchasers, (viii) fees and expenses of the Initial Issuers' counsel and
independent
11
accountants; (ix) all expenses and application fees incurred in the
approval of the Notes for book-entry transfer by DTC; and (x) all other
costs and expenses incident to the performance of the obligations of the
Company, TTC Merger Co or TTC under this Agreement which are not otherwise
specifically provided for in this Section 5(f); provided, however, that
-------- -------
except as provided in the last sentence of this Section 5(f) and Section 9,
the Initial Purchasers shall pay their own costs and expenses, including
the costs and expenses of their counsel, any taxes on the Notes which they
may sell and the expenses of advertising and offering of the Notes made by
the Initial Purchasers. The Initial Issuers will also pay or reimburse the
Initial Purchasers (to the extent incurred by them prior to the Closing
Date) for all reasonable travel expenses of the Initial Purchasers and the
Initial Issuers officers and employees and any other reasonable expenses of
the Initial Purchasers and the Initial Issuers in connection with attending
or hosting meetings with prospective purchasers of the Notes.
(g) In connection with the initial offering of the Notes, until the
earlier of (i) such time as CSFBC shall have notified the Initial Issuers
and the other Initial Purchasers of the completion by the Initial
Purchasers of the initial resale of the Notes and (ii) 180 days after the
Closing Date, none of the Initial Issuers and their affiliates has or will,
either alone or with one or more other persons, bid for or purchase, for
any account in which it has a beneficial interest, any Notes or attempt to
induce any person to purchase any Notes, in any such case for the purpose
of creating actual, or apparent, active trading in, or of raising the price
of, the Notes. CSFBC agrees to give such notice promptly upon such
completion.
(h) For a period of 180 days after the Closing Date (if the sale of
the Notes by the Initial Issuers to the Initial Purchaser shall have
occurred), the Initial Issuers will not offer, sell, contract to sell,
pledge, or otherwise dispose of, directly or indirectly, any dollar
denominated debt securities issued or guaranteed by the Company or any of
its subsidiaries and having a maturity of more than one year from the date
of issue, except (i) issuances of Exchange Securities pursuant to the
Registration Rights Agreement, (ii) grants of employee stock options
pursuant to the terms of a plan in effect on the date hereof, issuances of
Notes pursuant to the exercise of such options or the exercise of any other
employee stock options outstanding on the date hereof or (iii) promissory
notes or other debt securities issued or guaranteed in immaterial amounts
in the ordinary course of business.
(i) The Initial Issuers will use their reasonable best efforts to
assist the Initial Purchasers in arranging for the Notes to be eligible for
clearance and settlement through the Depository Trust Company ("DTC").
(j) Except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, the Initial Issuers will not, and will cause its affiliates not to, nor
will authorize or knowingly permit any person acting on their behalf to,
solicit any offer to buy or offer to sell the Notes by means of any form of
general solicitation or general advertising within the meaning of
Regulation D or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act; and each of the Company, TTC
Merger Co and
12
TTC will not offer, sell, contract to sell or otherwise dispose of,
directly or indirectly, any securities under circumstances where such
offer, sale, contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act or the safe harbor afforded by
Regulation S thereunder to cease to be applicable to the offering and sale
of the Notes as contemplated by this Agreement and the Offering Circular.
(k) The Company, TTC Merger Co and TTC will apply the net proceeds
from the sale of the Notes as set forth in the Offering Circular under the
heading "Use of Proceeds".
(l) The Initial Issuers will not, nor will cause their affiliates to,
sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as such term is defined in the Securities Act)
which could be integrated with the sale of the Notes in a manner which
would require registration of the Notes under the Securities Act.
(m) On or before the Closing Date, (i) TTC will authorize and execute
and deliver the Purchase Agreement Supplement, in form and substance
reasonably satisfactory to the Initial Purchasers and (ii) TTC and Dynatech
will duly authorize, execute and deliver the Registration Rights Agreement.
6. Conditions of the Obligations of the Initial Purchasers. The
obligations of the Initial Purchasers to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties on the part of the
Company and TTC Merger Co to the accuracy of the statements of officers of the
Company and TTC Merger Co herein made pursuant to the provisions hereof, to the
performance by each of the Company and TTC Merger Co of its obligations
hereunder and to the following additional conditions precedent:
(a) The Initial Purchasers shall have received a letter, dated the
date of this Agreement, of Coopers & ▇▇▇▇▇▇▇ confirming that they are
independent public accountants within the meaning of the Securities Act and
the applicable published rules and regulations thereunder ("Rules and
Regulations") and substantially in the form of Exhibit D hereto, or
otherwise in form and substance reasonably satisfactory to the Initial
Purchasers.
(b) The Initial Purchasers shall have received an opinion, dated such
the Closing Date, of Debevoise & ▇▇▇▇▇▇▇▇, counsel for the Initial Issuers
substantially in the form of Exhibit A hereto, or otherwise in form and
substance reasonably satisfactory to the Initial Purchasers.
(c) The Initial Purchasers shall have received an opinion, dated such
the Closing Date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Initial Issuers,
substantially in the form of Exhibit B hereto, or otherwise in form and
substance reasonably satisfactory to the Initial Purchasers.
(d) The Initial Purchasers shall have received an opinion, dated such
the Closing Date, of ▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇, Esq., general counsel of the
Company,
13
substantially in the form of Exhibit C hereto, or otherwise in form and
substance reasonably satisfactory to the Initial Purchasers.
(e) The Initial Purchasers shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions,
dated the Closing Date, with respect to the validity of the Notes, the
Offering Circular, the exemption from registration for the offer and sale
of the Notes by the Company and TTC Merger Co to the Initial Purchasers and
the resales by the Initial Purchasers as contemplated hereby and other
related matters as CSFBC may reasonably require, and the Company and TTC
Merger Co shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters. In
rendering such opinion, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely as to the
incorporation of the Company and all other matters governed by
Massachusetts law upon the opinion of ▇▇▇▇ and ▇▇▇▇ LLP referred to above.
(f) The Company shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of their chief executive officer or
any vice president and a principal financial or accounting officer in which
such officers, to the best of their knowledge and after reasonable
investigation shall state that (i) as of the Closing Date, the
representations and warranties of the Company and TTC Merger Co in this
Agreement are true and correct in all material respects, the Company and
TTC Merger Co have in all material respects complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder on or prior to the Closing Date, (ii) the Offering Circular did
not include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and since the date thereof, no event
has occurred which should have been set forth in a supplement or amendment
to the Offering Circular and (iii) subsequent to the date of the most
recent financial statements contained in the Offering Circular, there has
been no material adverse change, nor any development or event that, in his
reasonable judgment, would reasonably be expected to result in a material
adverse change, in the condition (financial or other), business, properties
results of operations or business of the Company and its subsidiaries taken
as a whole, except as set forth in or contemplated by the Offering Circular
or as described in such certificate.
(g) The Initial Purchasers shall have received a letter, dated the
Closing Date, of Coopers & ▇▇▇▇▇▇▇ which meets the requirements of
subsection (a) of this Section 6, except that the specified date referred
to in such subsection will be a date not more than three business days
prior to the Closing Date for the purposes of this subsection.
(h) The Initial Purchasers shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered
by a duly authorized officer or member of TTC and Dynatech.
14
(i) The recapitalization of Dynatech and the financings and
transactions related thereto shall have been consummated substantially as
described in the Offering Circular.
(j) Subsequent to the execution of this Agreement, there shall not
have occurred (i) any change, or any development or event that would
reasonably be expected to result in a change, in the condition (financial
or other), business, properties or results of operations of the Company and
its subsidiaries, taken as a whole, which, in the reasonable judgment of
the Initial Purchasers, is material and adverse and makes it impracticable
to proceed with the completion of the offering contemplated herein or the
resale of and payment for the Notes; (ii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange or in the over-the-
counter market; (iii) any banking moratorium declared by U.S. Federal or
New York authorities; or (iv) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the reasonable judgment of the Initial Purchasers, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impracticable to proceed with completion of the offering
contemplated herein or the resale of or payment for the Notes.
(k) The Company and TTC Merger Co shall have furnished to the Initial
Purchasers such additional documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale
of the Notes as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of
the conditions, herein contained.
The Company, TTC Merger Co and TTC will furnish the Initial Purchasers with
such conformed copies of such opinions, certificates, letters and documents as
the Initial Purchasers reasonably request. CSFBC may in its sole discretion
waive on behalf of the Initial Purchasers compliance with any conditions to the
obligations of the Initial Purchasers hereunder, whether in respect of the
Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Initial Issuers will
jointly and severally indemnify and hold harmless each Initial Purchaser against
any losses, claims, damages or liabilities, joint or several, to which such
Initial Purchaser may become subject, under the Securities Act or the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of any untrue statement or alleged untrue
statement of any material fact contained in the Offering Circular, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
will reimburse each Initial Purchaser for any legal or other expenses reasonably
incurred by such Initial Purchaser in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
-------- -------
neither Initial Issuer will be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission
15
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Initial Issuers by any
Initial Purchaser through CSFBC specifically for use therein, it being
understood and agreed that the only such information consists of the information
described as such in subsection (b) below; and provided further, that the
-------- -------
foregoing indemnity with respect to the preliminary offering circular shall not
inure to the benefit of any Initial Purchaser from whom the person asserting any
such losses, claims, damages or liabilities purchased Notes, to the extent that
any such losses, claims, damages or liabilities of such Initial Purchaser result
from a fact that such Initial Purchaser sold Notes to a person in an initial
resale to whom there was not sent or given at or prior to the written
confirmation of the sale of such Notes, a copy of the final offering circular
(as amended and supplemented), if the Initial Issuers had previously furnished
such amendments or supplements to such Initial Purchaser prior to confirmation
of the sale of such Notes to such person by such Initial Purchaser and the
losses, claims, damages or liabilities of such Initial Purchaser result from an
untrue statement or omission of a material fact contained in the preliminary
offering circular, which was corrected in the final offering circular.
(b) Each Initial Purchaser will severally and not jointly indemnify and
hold harmless the Company, TTC Merger Co and (upon due execution and delivery of
the Purchase Agreement Supplement) TTC against any losses, claims, damages or
liabilities to which the Company, TTC Merger Co and (upon due execution and
delivery of the Purchase Agreement Supplement) TTC may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Offering Circular, or any amendment or supplement thereto, or
any related preliminary offering circular, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Initial Purchaser through CSFBC specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by the Company, TTC Merger Co or
(upon due execution and delivery of the Purchase Agreement Supplement) TTC in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Initial Purchaser
consists of the following information in the Offering Circular furnished on
behalf of each Initial Purchaser: the last paragraph at the bottom of the cover
page concerning the terms of the offering by the Initial Purchasers; the legend
concerning over-allotments and stabilizing on the top of page (i); and the first
and third sentences of paragraph five, the seventh paragraph and the last
paragraph under the caption "Plan of Distribution".
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought
16
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (if such counsel is counsel to the
indemnifying party and the representation of the indemnified party would present
such counsel with a conflict of interest, the indemnified party will have the
right to employ separate counsel, and the indemnifying party will bear the
reasonable fees, costs and expenses of only one such separate counsel for all
indemnified parties) 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 under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in which any indemnified party is a party to the extent such
settlement is binding upon such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company, TTC
Merger Co and TTC on the one hand and the Initial Purchasers on the other from
the offering of the Notes or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, TTC Merger Co and TTC on the one hand and the
Initial Purchasers on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received by the
Company, TTC Merger Co and TTC on the one hand and the Initial Purchasers on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company, TTC
Merger Co and TTC bear to the total discounts and commissions received by the
Initial Purchasers from the Company and TTC Merger Co under this Agreement. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company, TTC Merger Co or TTC or the Initial Purchasers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Initial Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes purchased by it were resold
exceeds the amount of any damages which such Initial Purchaser has otherwise
been required to pay by reason of such
17
untrue or alleged untrue statement or omission or alleged omission. The Initial
Purchasers' obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not joint.
(e) The obligations of the Company, TTC Merger Co and TTC under this
Section shall be in addition to any liability which the Company, TTC Merger Co
and TTC may otherwise have and shall extend, upon the same terms and conditions,
to each person, if any, who controls any Initial Purchaser within the meaning of
the Securities Act or the Exchange Act; and the obligations of the Initial
Purchasers under this Section shall be in addition to any liability which the
respective Initial Purchasers may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls the Company, TTC
Merger Co or TTC within the meaning of the Securities Act or the Exchange Act.
(f) 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.
8. Default of Initial Purchasers. If any Initial Purchaser or Initial
Purchasers default in their obligations to purchase Notes hereunder and the
aggregate principal amount of the Notes that such defaulting Initial Purchaser
or Initial Purchasers agreed but failed to purchase does not exceed 10% of the
total principal amount of the Notes, CSFBC may make arrangements satisfactory to
the Company for the purchase of such Notes by other persons, including any of
the Initial Purchasers, but if no such arrangements are made by the Closing
Date, the non-defaulting Initial Purchasers shall be obligated severally, in
proportion to its commitments hereunder, to purchase the Notes that such
defaulting Initial Purchasers agreed but failed to purchase. If any Initial
Purchaser or Initial Purchasers so default and the aggregate principal amount
number of the Notes with respect to which such default or defaults occur exceeds
10% of the total principal amount of the Notes and arrangements satisfactory to
CSFBC and the Company for the purchase of such Notes by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Initial Purchaser or the Company,
except as provided in Section 9. As used in this Agreement, the term "Initial
Purchaser" includes any person substituted for a Initial Purchaser under this
Section. Nothing herein will relieve a defaulting Initial Purchaser from
liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or TTC Merger Co or their respective officers and of the Initial
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Initial Purchaser, the Company, TTC
Merger Co or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Notes.
If this Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Notes by the Initial Purchasers is not consummated, the Company,
TTC Merger Co and TTC shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company and TTC Merger Co and the Initial Purchasers pursuant to Section 7 shall
remain in effect. If the purchase of the Notes by the Initial
18
Purchasers is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in Section 6(j), the Company will reimburse the Initial
Purchasers for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Notes.
10. Representation of Initial Purchasers. CSFBC has the authority to, and
will, act for the Initial Purchasers in connection with this purchase, and any
action under this Agreement taken by CSFBC will be binding upon all the Initial
Purchasers.
11. Notices. All communications hereunder will be in writing and, if sent
to the Initial Purchasers will be mailed, delivered or telegraphed and confirmed
to the Initial Purchasers c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department - Transactions Advisory Group, or, if sent to the Company or TTC
Merger Co, will be mailed, delivered or telegraphed and confirmed to it c/o
Dynatech Corporation, ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(Telephone: ▇▇▇-▇▇▇-▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇), Attention: Chief Financial
Officer; provided, however, that any notice to a Initial Purchaser pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such Initial
Purchaser.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of the Notes shall be
entitled to enforce the agreements for their benefit contained in the second
sentence of Section 5(b) hereof against the Initial Issuers as if such holders
were parties hereto.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
15. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
16. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
Each party hereto hereby submits to the jurisdiction of the Federal and
state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
19
If the foregoing is in accordance with the Initial Purchasers'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company, TTC Merger Co and the Initial Purchasers in accordance with its terms.
Very truly yours,
DYNATECH CORPORATION
By: /s/ ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
Title: Vice President and General Counsel
TTC MERGER CO. LLC
By: Dynatech Corporation, its sole member
-------------------------------------
By: ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
Title: Vice President and General Counsel
The foregoing Purchase Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
20
SCHEDULE A
INITIAL PURCHASER PRINCIPAL AMOUNT OF
---------------------------------------- NOTES
-------------------
Credit Suisse First Boston Corporation.. $137,500,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.............. $137,500,000
____________
Total......................... $275,000,000
============