EXHIBIT 4.4
$275,000,000
TELECOMMUNICATIONS TECHNIQUES CO., LLC
9 3/4% SENIOR SUBORDINATED NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
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May 21, 1998
Credit Suisse First Boston Corporation
▇.▇. ▇▇▇▇▇▇ Securities Inc.
c/o Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
After the effective time of the merger of TTC Merger Co. LLC, a
Delaware limited liability company ("TTC Merger Co"), with and into
Telecommunications Techniques Co., LLC, a Delaware limited liability company
("TTC"), and the assumption of obligations of TTC Merger Co by and the
assignment of certain obligations by Dynatech Corporation, a Massachusetts
corporation ("Dynatech", and together with TTC, the "Company"), to TTC, TTC will
be the primary obligor on the $275,000,000 aggregate principal amount of 9 3/4%
Senior Subordinated Notes Due 2008, to be fully and unconditionally guaranteed
by Dynatech (the "Initial Securities") and to be issued to Credit Suisse First
Boston Corporation and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (collectively, the "Initial
Purchasers"), upon the terms set forth in a purchase agreement dated May 14,
1998 (the "Purchase Agreement"). The Initial Securities will be issued pursuant
to an Indenture, dated as of May 21, 1998, (the "Indenture") among the Dynatech,
TTC Merger Co and State Street Bank and Trust Company, as trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture, dated as of May
21, 1998, among Dynatech, TTC and the Trustee. The obligations of the Company
hereunder are joint and several obligations of Dynatech and TTC.
The Company agrees with the Initial Purchasers, for the benefit of the
holders of the Initial Securities (including, without limitation, the Initial
Purchasers), the Exchange Securities (as defined below) and the Private Exchange
Securities (as defined below) (collectively the "Holders"), as follows:
1. Registered Exchange Offer. The Company shall, at its own cost,
prepare and use its reasonable best efforts to, not later than 120 days (or if
the 120th day is not a business day, the first business day thereafter) after
the date of original issue of the Initial Securities (the "Issue Date"), file
with the Securities and Exchange Commission (the "Commission") a registration
statement (the "Exchange Offer Registration Statement") on an appropriate form
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to a proposed offer (the "Registered Exchange Offer") to those Holders
of Initial Securities that are Transfer Restricted Securities (as defined in
Section 6 hereof) who are not prohibited by any law or policy or interpretation
of the Commission or its staff from participating in the Registered Exchange
Offer, to issue and deliver to such Holders, in exchange
for the Initial Securities, a like aggregate principal amount of debt securities
(the "Exchange Securities") of TTC issued under the Indenture and identical in
all material respects to the Initial Securities (except for the transfer
restrictions relating to the Initial Securities and the provisions relating to
the matters described in Section 6 hereof) that would be registered under the
Securities Act. The Company shall use its reasonable best efforts to cause such
Exchange Offer Registration Statement to become effective under the Securities
Act within 150 days (or if the 150th day is not a business day, the first
business day thereafter) after the Issue Date of the Initial Securities and to
keep the Exchange Offer Registration Statement effective for not less than 10
business days (or longer, if required by applicable law) after the date notice
of the Registered Exchange Offer is mailed to the Holders (such period being
called the "Exchange Offer Registration Period"). For purposes hereof,
"business day" shall mean any day other than a Saturday or Sunday, and other
than a holiday on which the Commission shall not be open for the transaction of
business.
If the Company effects the Registered Exchange Offer, the Company will
be entitled to close the Registered Exchange Offer on the last day of the
Exchange Offer Registration Period, provided that the Company has accepted all
the Initial Securities theretofore validly tendered in accordance with the terms
of the Registered Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer,
subject to the terms and conditions hereof, to enable each Holder of Initial
Securities that are Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act, acquires the
Exchange Securities in the ordinary course of such ▇▇▇▇▇▇'s business and has no
arrangements with any person to participate in the distribution of the Exchange
Securities and is not prohibited by any law or policy or interpretation of the
Commission or its staff from participating in the Registered Exchange Offer) to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act.
The Company and the Initial Purchasers acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the Securities
Act, in the absence of an applicable exemption therefrom, (i) each Holder that
is a broker-dealer electing to exchange Initial Securities in the Registered
Exchange Offer, acquired for its own account as a result of market making
activities or other trading activities, for Exchange Securities (a
"Participating Broker-Dealer"), is required to deliver a prospectus containing
information substantially to the effect set forth in Annex A hereto, Annex B
hereto and Annex C hereto in the appropriate sections of such prospectus in
connection with a sale of any such Exchange Securities received by such
Participating Broker-Dealer pursuant to the Registered Exchange Offer and (ii)
an Initial Purchaser that elects to sell Private Exchange Securities (as defined
below) acquired in exchange for Initial Securities constituting any portion of
an unsold allotment, is required to deliver a prospectus containing the
information required by Items 507 or 508 of Regulation S-K under the Securities
Act, as applicable, in connection with such sale.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be delivered
by dealers subject to the prospectus delivery requirements of Section 4(3) of
the Securities Act and Rule 174 thereunder (for such period of time as shall be
required thereby for such delivery in order to resell the Exchange Securities),
and shall make such prospectus and any amendment or supplement thereto available
to any Participating Broker-
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Dealer for use in connection with any resale of any Exchange Securities, in
either case for a period of not more than 90 days after the consummation of the
Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, TTC, simultaneously with the delivery of the Exchange Securities
pursuant to the Registered Exchange Offer, shall issue and deliver to such
Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "Private Exchange") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of TTC issued
under the Indenture and identical in all material respects (including the
existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States, but excluding
provisions relating to the matters described in Section 6 hereof) to the Initial
Securities (the "Private Exchange Securities"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "Securities".
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of
the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 10
business days (or longer, if required by applicable law) after the
date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business
day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all applicable
securities laws.
As soon as practicable after the close of the Registered Exchange
Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and
not withdrawn pursuant to the Registered Exchange Offer and the
Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) request the Trustee to authenticate and deliver promptly, to
each Holder of such Initial Securities, Exchange Securities or Private
Exchange Securities, as the case may be, equal in principal amount to
such Initial Securities of such Holder so accepted for exchange.
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The Indenture will provide that all the Securities will vote and
consent together on all matters as one class and that none of the Securities
will have the right to vote or consent as a class separate from one another on
any matter.
Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last interest payment date to which interest was paid or
duly provided for on the Initial Securities surrendered in exchange therefor
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) or, if no interest
has been paid on the Initial Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule
405 of the Securities Act, of the Company or if it is an affiliate, such Holder
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder is not a broker-
dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Securities, (v) if such Holder is a broker-dealer,
that it will receive Exchange Securities for its own account in exchange for
Initial Securities that were acquired as a result of market-making activities or
other trading activities and that it will deliver a prospectus in connection
with any resale of such Exchange Securities, and (vi) that it is not acting on
behalf of any person who could not truthfully make the foregoing
representations.
Notwithstanding any other provisions hereof, the Company will use its
reasonable best efforts to ensure that (i) any Exchange Offer Registration
Statement and any amendment thereto and any prospectus forming part thereof and
any supplement thereto complies in all material respects with the Securities Act
and the rules and regulations thereunder, (ii) any Exchange Offer Registration
Statement and any amendment thereto does not, when it becomes effective, 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 (iii) any prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not include an untrue
statement of a material fact or omit to state 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.
Upon consummation of the Registered Exchange Offer in accordance with
this Section 1 (whether or not the actions or events specified in the first
sentence of this Section 1 occur within the time periods specified therefor) the
provisions of this Agreement shall continue to apply (to the extent applicable)
solely with respect to Securities that (i) were not eligible to be exchanged in
the Registered Exchange Offer (other than due to the status of the Holder
thereof as an affiliate of the Company or due to such Holder's inability to make
the representations referred to in the third to last paragraph of this Section
1) and have not been exchanged for Private Exchange Securities, (ii) were
received by the Holder thereof (other than a Participating Broker-Dealer) in the
Registered Exchange Offer but are not freely tradeable on the date of such
exchange (other than due to the status of such Holder as an affiliate of the
Company or due to such Holder's inability to make the representations referred
to in the third to last paragraph of this Section 1) or (iii) are Private
Exchange Securities and Exchange Securities held by Participating Broker-
Dealers, and the Company shall have no further obligation to
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register Securities (other than those Securities referred to in clause (i) or
(ii) above and Private Exchange Securities) pursuant to Section 2 of this
Agreement.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated within
180 days of the Issue Date, (iii) any Initial Purchaser so requests with respect
to the Initial Securities (or the Private Exchange Securities) not eligible to
be exchanged for Exchange Securities in the Registered Exchange Offer and held
by it following consummation of the Registered Exchange Offer or (iv) any Holder
(other than a Participating Broker Dealer) is not eligible to participate in the
Registered Exchange Offer or, in the case of any Holder (other than a
Participating Broker Dealer) that participates in the Registered Exchange Offer,
such Holder does not receive freely tradeable Exchange Securities on the date of
the exchange (other than, in either case, due solely to the status of such
Holder as an affiliate of the Company or due to such ▇▇▇▇▇▇'s inability to make
the representations referred to in the third to last paragraph of Section 1
hereof), the Company shall take the following actions:
(a) The Company shall, at its cost, use its reasonable best efforts to
file with the Commission as promptly as reasonably practicable, and thereafter
shall use its reasonable best efforts to be declared effective, a registration
statement (the "Shelf Registration Statement" and, together with the Exchange
Offer Registration Statement, a "Registration Statement") on an appropriate form
under the Securities Act relating to the offer and sale of the Transfer
Restricted Securities by the Holders thereof from time to time in accordance
with the methods of distribution set forth in the Shelf Registration Statement
and Rule 415 under the Securities Act (hereinafter, the "Shelf Registration");
provided, however, that no Holder (other than an Initial Purchaser) shall be
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entitled to have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all the provisions
of this Agreement applicable to such Holder.
(b) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period (the "Shelf Registration Period") of two years
(or one year in the case of a shelf registration effected at the request of the
Initial Purchasers) from the date of its effectiveness or such shorter period
that will terminate when all the Securities covered by the Shelf Registration
Statement (i) have been sold pursuant thereto or (ii) are no longer restricted
securities (as defined in Rule 144 under the Securities Act, or any successor
rule thereof). The Company shall be deemed not to have used its reasonable best
efforts to keep the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in Holders of
Securities covered thereby not being able to offer and sell such Securities
during that period, unless (i) such action is required by applicable law, (ii)
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such action is taken by the Company in good faith and for valid business reasons
(not including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly thereafter
complies with the requirements of Section 3(j) hereof, if applicable, or (iii)
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such action occurs following consummation of the Registered Exchange Offer.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall use its reasonable best efforts to cause the Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement, amendment or supplement, (i) to comply in all material respects with
the applicable requirements of the Securities Act and the rules and regulations
of the Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated
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therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (in any such case,
other than with respect to information included therein in reliance upon or in
conformity with written information furnished to the Company by or on behalf of
any Holder specifically for use therein).
3. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that an Initial Purchaser (with respect to any portion
of an unsold allotment from the original offering) is participating in the Shelf
Registration Statement, the Company shall use its reasonable best efforts to
reflect in each such Shelf Registration Statement or related amendment or
supplement, when so filed with the Commission, such comments as such Initial
Purchaser reasonably may propose, (ii) if applicable, include information
substantially to the effect set forth in Annex A hereto, Annex B hereto and
Annex C hereto in the appropriate sections of the prospectus forming a part of
the Exchange Offer Registration Statement and include information substantially
to the effect set forth in Annex D hereto in the Letter of Transmittal delivered
pursuant to the Registered Exchange Offer, (iii) in the case of any Shelf
Registration Statement, if requested by an Initial Purchaser that proposes to
sell Securities pursuant to the Shelf Registration Statement as a selling
securityholder, include the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in the prospectus
forming a part of the Shelf Registration Statement, (iv) include within the
prospectus contained in the Exchange Offer Registration Statement, in a section
entitled "Plan of Distribution" or other appropriate heading, a summary
statement reasonably acceptable to the Initial Purchasers, of the positions
taken or policies made by the staff of the Commission with respect to the
potential "underwriter" status of any broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) of Exchange Securities received by such broker-dealer in
the Registered Exchange Offer, and (v) in the case of a Shelf Registration
Statement, include the names of the Holders who propose to sell Securities
pursuant to the Shelf Registration Statement as selling securityholders (the
"Selling Holders").
(b) The Company shall advise each of the Initial Purchasers, the
Selling Holders (in the case of a Shelf Registration Statement) and any
Participating Broker-Dealer (in the case of any Exchange Offer Registration
Statement) from whom the Company has received prior written notice that it will
be a Participating Broker-Dealer in the Registered Exchange Offer, and, if
requested by any such person, confirm such advice in writing (which advice
pursuant to clauses (ii)-(v) hereof shall be accompanied (if applicable) by an
instruction to suspend the use of the relevant prospectus until the requisite
changes have been made):
(i) when the Registration Statement or any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information;
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(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Registration Statement or the prospectus in order
that the Registration Statement (as of its effective date) or the
prospectus do not contain an untrue statement of a material fact nor
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they were made)
not misleading.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Transfer Restricted
Securities included within the coverage of the Shelf Registration, without
charge, at least one copy of the Shelf Registration Statement and any post-
effective amendment thereto, including financial statements and schedules, and,
if the Holder so requests in writing, all exhibits thereto (including those, if
any, incorporated by reference).
(e) The Company shall deliver to each Participating Broker-Dealer and
each Initial Purchaser, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if any Initial Purchaser requests, all
exhibits thereto (including those, if any, incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Selling Holder of Securities included within the coverage of the Shelf
Registration Statement, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person may reasonably
request. The Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by each of the
Selling Holders of the Transfer Restricted Securities in connection with the
offering and sale of the Transfer Restricted Securities covered by the
prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company shall, during the Exchange Offer Registration Period,
deliver to each Initial Purchaser, and any Participating Broker-Dealer, without
charge, as many copies of the final prospectus included in the Exchange Offer
Registration Statement and any amendment or supplement thereto as such person
may reasonably request. The Company consents, subject to the provisions of this
Agreement, to the use of such prospectus or any amendment or supplement thereto,
during the 90 days following the consummation of the Registered Exchange Offer,
by any Participating Broker-Dealer required to deliver a prospectus following
the Registered Exchange Offer in connection with the offering and sale of the
Exchange Securities covered by the prospectus, or any amendment or supplement
thereto, included in such Exchange Offer Registration Statement.
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(h) Prior to any public offering of the Securities pursuant to any
Shelf Registration Statement, the Company shall use its reasonable best efforts
to register or qualify or cooperate with the Selling Holders of the Securities
included therein and their respective counsel in connection with the
registration or qualification of the Securities for offer and sale under the
securities or "blue sky" laws of such states of the United States as any such
Holder of the Securities reasonably requests in writing and do any and all other
acts or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement;
provided, however, that the Company shall not be required to (i) qualify
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generally to do business in any jurisdiction where it is not then so qualified
or (ii) take any action that would subject it to general service of process or
to taxation in any jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Selling Holders of the
Securities to facilitate the timely preparation and delivery of certificates
representing the Transfer Restricted Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends relating to transfer
restrictions (and not required by stock exchange rule or depository rule or
usage) and in such denominations and registered in such names as the Holders may
reasonably request in writing a reasonable period of time prior to sales of such
Securities pursuant to such Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Company is
required to maintain an effective Registration Statement, the Company shall use
its reasonable best efforts to promptly prepare and file a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter delivered to
Holders of the Securities or purchasers of Securities, the prospectus will not
contain an untrue statement of a material fact or omit to state any 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. If
the Company notifies the Initial Purchasers, the Selling Holders of the
Securities or any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made, then
the Initial Purchasers, such Holders of the Securities or any such Participating
Broker-Dealer, as applicable, shall suspend use of such prospectus. The period
of effectiveness of the Shelf Registration Statement provided for in Section
2(b) above or the Exchange Offer Registration Statement provided for in Section
1 above, as applicable, shall be extended by the number of days from and
including the date of giving of such notice to and including the date when the
Company shall have mailed to the Selling Holders of the Securities or any known
Participating Broker-Dealer, as applicable, such amended or supplemented
prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Initial Securities,
the Exchange Securities or the Private Exchange Securities, as the case may be,
and provide the applicable trustee with printed certificates for the Initial
Securities, the Exchange Securities or the Private Exchange Securities, as the
case may be, in a form eligible for deposit with The Depository Trust Company.
(l) The Company will make generally available to its securityholders
(or otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act (which need not be audited), no later than 45 days after the end of a 12-
month period (or 90 days, if such period is a fiscal year) beginning with the
first month of the Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statement shall cover such 12-month
period.
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(m) The Company shall use its reasonable best efforts to cause the
Indenture to be qualified under the Trust Indenture Act of 1939, as amended, in
a timely manner and containing such changes, if any, as shall be necessary for
such qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall use its
reasonable best efforts to appoint a new trustee thereunder pursuant to the
applicable provision of the Indenture.
(n) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as the
Company may from time to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from such registration the
Securities of any Holder that unreasonably fails to furnish such information
within a reasonable time after receiving such request.
(o) In the case of any Shelf Registration Statement, the Company shall
enter into such customary agreements (including, if requested, an underwriting
agreement in customary form) and use its reasonable best efforts to take all
such other action, if any, as Selling Holders of a majority in aggregate
principal amount of the Securities being sold pursuant to the Shelf Registration
Statement (the "Majority Selling Holders") or the managing underwriters, if any,
in such offering shall reasonably request in order to facilitate the disposition
of the Securities pursuant to such Shelf Registration Statement.
(p) In the case of any Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by a representative of, and Special
Counsel (as defined below) acting for, the Majority Selling Holders and any
underwriter participating in any disposition of Securities pursuant to the Shelf
Registration Statement (such representative, Special Counsel or underwriter, an
"Inspector"), all relevant financial and other records, pertinent corporate
documents and properties of the Company and (ii) use its reasonable best efforts
to cause the Company's officers, directors, employees, accountants and auditors
to supply all relevant information reasonably requested by such Inspector in
connection with the Shelf Registration Statement, in each case, as shall be
reasonably necessary to enable such persons to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
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however, that the foregoing inspection and information gathering shall be
-------
coordinated by the Inspectors. Each Inspector will be required to agree in
writing, pursuant to a confidentiality agreement in form and substance
reasonably satisfactory to the Company and such Inspector, that (i) information
obtained by such Inspector as a result of such inspections shall be deemed
confidential and shall not be used by such Inspector as the basis for any market
transactions in the securities of any of the Company and its subsidiaries unless
and until such information is made generally available to the public (other than
by or through any Inspector) and (ii) such Inspector will, upon learning that
disclosure of such records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of the records deemed confidential.
(q) In the case of any Shelf Registration Statement, the Company, if
requested by the Majority Selling Holders of Securities covered thereby, shall
use its reasonable best efforts to cause (i) its counsel to deliver an opinion
relating to the Securities in customary form, addressed to the Selling Holders
of Securities covered thereby, (ii) its officers to execute and deliver all
customary documents and certificates reasonably requested by any managing
underwriters of the applicable Securities and (iii) its independent public
accountants to provide a comfort letter in customary form addressed to the
Selling Holders of Securities covered thereby, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of Auditing
Standards No. 72.
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(r) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the Company
(or to such other Person as directed by the Company) in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may be, the
Company shall mark, or caused to be marked, on the Initial Securities so
exchanged that such Initial Securities are being canceled in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may be; in
no event shall the Initial Securities be marked as paid or otherwise satisfied.
4. Registration Expenses. The Company shall bear all fees and
expenses incurred by it in connection with the performance of its obligations
under Sections 1 through 3 hereof, whether or not the Registered Exchange Offer
or a Shelf Registration Statement is filed or becomes effective, and, in the
event of a Shelf Registration Statement, shall reimburse the Holders of the
Securities covered thereby for the reasonable fees and disbursements of one firm
of counsel designated by the Holders of a majority in principal amount of the
Securities covered thereby (the "Special Counsel") to act as counsel for the
Holders of the Securities in connection therewith. The Initial Purchasers shall
bear any fees and expenses of their counsel incurred in connection with the
Registered Exchange Offer.
5. Indemnification. (a) The Company agrees to indemnify and hold
harmless (in the case of a Shelf Registration Statement) each Selling Holder of
Securities covered thereby and each person, if any, who controls such Holder
within the meaning of the Securities Act or the Exchange Act, and (in the case
of an Exchange Offer Registration Statement, in connection with any delivery of
the prospectus contained therein by a Participating Broker-Dealer) any
Participating Broker-Dealer and each person, if any, who controls such
Participating Broker-Dealer within the meaning of the Securities Act or the
Exchange Act (each such Holder, any such Participating Broker-Dealer and such
controlling persons are referred to collectively as the "Indemnified Parties")
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in such
applicable Registration Statement or prospectus forming part thereof or in any
amendment or supplement thereto or (in the case of such Shelf Registration
Statement) in any preliminary prospectus relating to a Shelf Registration
Statement, or arise out of, or are based upon, the omission or alleged omission
to state therein 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 shall reimburse the Indemnified Parties for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action in respect
thereof; provided, however, that (i) the Company shall not be liable in any such
-------- -------
case to the extent that such loss, claim, damage or liability arises out of or
is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in a Registration Statement or prospectus forming part
thereof or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration Statement in reliance upon and in
conformity with written information pertaining to such Holder and furnished to
the Company by or on behalf of such Holder specifically for inclusion therein
and (ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any prospectus, or any amendment or supplement
thereto, or any preliminary prospectus relating to a Shelf Registration
Statement, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder or Participating Broker-Dealer from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Securities concerned to the extent that either (x) a prospectus relating to such
Securities was required to be
10
delivered by such Holder or Participating Broker-Dealer under the Securities Act
in connection with such purchase and there was not sent or given to such person,
at or prior to the written confirmation of the sale of such Securities to such
person, a copy of the final prospectus (in the case of any such preliminary
prospectus) or a prospectus amendment or supplement (in any other case) if the
Company had previously furnished copies thereof to such Holder or Participating
Broker-Dealer, and such untrue statement or omission or alleged untrue statement
or omission was corrected in such final prospectus or prospectus amendment or
supplement, or (y) at the time of such purchase such Holder or Participating
Broker-Dealer had received advice from the Company that the use of such
prospectus, amendment, supplement or preliminary prospectus was suspended as
provided in Section 3(b); provided further, however, that this indemnity
-------- ------- -------
agreement will be in addition to any liability that the Company may otherwise
have to such Indemnified Party.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof, to which the Company or any such controlling person
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement or prospectus forming part thereof or
in any amendment or supplement thereto or in any preliminary prospectus relating
to a Shelf Registration Statement, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse the Company for any legal or other
expenses reasonably incurred by the Company or any such controlling person in
connection with investigating or defending any loss, claim, damage, liability or
action in respect thereof. This indemnity agreement will be in addition to any
liability that such Holder may otherwise have to the Company or any of its
controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof, but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in subsection (a) or (b) above. In case any
such action is brought 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, 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 5 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof. 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.
11
(d) If the indemnification provided for in this Section 5 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 (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other, or (ii) if the allocation provided
by the foregoing clause (i) 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 indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties 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 on the one hand or
such Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such 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 that is the subject of this subsection (d). 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. For purposes of this subsection
(d), each person, if any, who controls such indemnified party within the meaning
of the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") with respect to the Initial Securities that
are Transfer Restricted Securities shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (ii) below being
herein referred to as a "Registration Default"):
(i) neither the Exchange Offer Registration Statement nor a Shelf
Registration Statement has been filed with the Commission on or before the
120th day after the Issue Date (or if such day is not a business day, the
first business day thereafter), or September 18, 1998;
(ii) the Registered Exchange Offer is not consummated on or before the
180th day after the Issue Date (or if such day is not a business day, the
first business day thereafter), or November 17, 1998;
(iii) if a Shelf Registration Statement is required to be filed under
this Agreement, such Shelf Registration Statement is not declared effective
by the Commission on or before the 210th day after the Issue Date (or if
such day is not a business day, the first business day thereafter), or
December 17, 1998 (or, in the case of a Shelf Registration Statement
required to
12
be filed in response to any change in applicable interpretation of the
Commission, if later, on or before the 90th day after publication of such
change); or
(iv) if a Shelf Registration Statement is required to be filed under
this Agreement, and after the Shelf Registration Statement is declared
effective and during the period that the Company is required to use its
reasonable best efforts to keep the Shelf Registration Statement effective
as provided in Section 2(a), such Shelf Registration Statement thereafter
ceases to be effective and continues not to be effective (other than in
connection with the consummation of the Registered Exchange Offer, as
contemplated by the last sentence of Section 2(a)), or the Company shall
have suspended and be continuing to suspend the availability of the
prospectus contained in the Shelf Registration Statement, for more than 30
days in the aggregate in any consecutive twelve-month period.
Additional Interest shall accrue on the Initial Securities that are
Transfer Restricted Securities over and above the interest set forth in the
title of the Securities from and including the date on which any such
Registration Default shall occur to but excluding the date on which such
Registration Default has been cured, at a rate of (a) prior to the 91st day of
such period (for so long as such period is continuing), 0.25% per annum and (b)
thereafter (for so long as such period is continuing), 0.50% per annum. Any
such Additional Interest shall not exceed such respective rates for such
respective periods, and shall not in any event exceed 0.50% per annum in the
aggregate, regardless of the number of Registration Defaults that shall have
occurred and be continuing. Following the cure of all Registration Defaults,
the accrual of such Additional Interest will cease. All Registration Defaults
will be deemed cured upon consummation of the Exchange Offer.
Notwithstanding anything to the contrary in this Section 6(a), the
Company shall not be required to pay Additional Interest to any Holder of
Transfer Restricted Securities if such Holder failed to comply with its
obligations to make the representations set forth in the third to last paragraph
of Section 1 or failed to provide the information required to be provided by it,
if any, pursuant to Section 3(n).
(b) Any amounts of Additional Interest due pursuant to clause (i),
(ii), (iii) or (iv) of Section 6(a) above will be payable in cash on the regular
interest payment dates with respect to the Initial Securities. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Initial Securities that are
Transfer Restricted Securities, multiplied by a fraction, the numerator of which
is the number of days such Additional Interest rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
(c) "Transfer Restricted Securities" means each Security until (i) the
date on which such Security has been exchanged by a person for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) the date
on which such Security has been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement or (iii) the
date on which such Security is distributed to the public pursuant to Rule 144
under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act (or otherwise is eligible for resale pursuant to Rule 144 (or any
successor provision) under the Securities Act without volume restriction, if
any).
7. Rules 144 and 144A. So long as any Transfer Restricted
Securities remain outstanding, the Company shall use its reasonable best efforts
to file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner or, upon the request of any Holder of Initial
Securities that are Transfer Restricted Securities, make publicly available
other
13
information so long as necessary to permit sales of such Securities pursuant to
Rules 144 and 144A under the Securities Act. The Company covenants that it will
use its reasonable best efforts to take such further action as any Holder of
Transfer Restricted Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell such Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4)).
Upon the written request of any Holder of Initial Securities that are Transfer
Restricted Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of such Transfer Restricted Securities to be
included in such offering, subject to the consent of the Company (which shall
not be unreasonably withheld or delayed), and such Holders shall be responsible
for all underwriting commissions and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of the
Holders of Initial Securities, Exchange Securities or Private Exchange
Securities whose Initial Securities, Exchange Securities or Private Exchange
Securities are being sold pursuant to a Registration Statement, and that does
not directly or indirectly affect the rights of other Holders, may be given by
Holders of a majority in aggregate principal amount of the Initial Securities,
Exchange Securities or Private Exchange Securities, as the case may be, being
sold by such Holders pursuant to such Registration Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Company.
14
(2) if to the Initial Purchasers:
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Transactions Advisory Group
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
(3) if to the Company, at its address as follows:
c/o Dynatech Corporation
▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
Dynatech Corporation
▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
and to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier next
day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
15
(d) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Company, each other party hereto and each Holder,
and their respective successors and assigns. Each Holder by its acceptance of a
Security, for itself and its successors and assigns, agrees to be bound hereby.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY
PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAW OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(h) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
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.
16
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the several Initial Purchasers, Dynatech and TTC in accordance with its terms.
Very truly yours,
TELECOMMUNICATIONS TECHNIQUES
CO., LLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: Corporate Vice President,
Chief Financial Officer and
Treasurer
DYNATECH CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: Corporate Vice President,
Chief Financial Officer and
Treasurer
The foregoing Registration Rights Agreement
is hereby confirmed, accepted and agreed to
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ ^[Indistinguishable]^
-------------------------------------
Title: Vice President
17
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Initial Securities where such Initial Securities were acquired by such broker-
dealer as a result of market-making activities or other trading activities. The
Company has agreed that, for a period of 90 days after the Expiration Date (as
defined herein), it will make this Prospectus available to any Participating
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
1
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account
in exchange for Initial Securities, where such Initial Securities were acquired
by such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a Participating Broker-Dealer in connection with resales of Exchange
Securities received in exchange for Initial Securities where such Initial
Securities were acquired as a result of market-making activities or other
trading activities. The Company has agreed that, for a period of 90 days
after the Expiration Date, it will make this prospectus, as amended or
supplemented, available to any Participating Broker-Dealer for use in
connection with any such resale. In addition, until , 199 , all
dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange
Securities may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of Exchange Securities and
any commission or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that, by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Participating Broker-Dealer that requests
such documents in the Letter of Transmittal. The Company has agreed to pay
all expenses incurred by it incident to the Exchange Offer other than
commissions or concessions of any brokers or dealers and will indemnify the
Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
1
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
-----------------------------------------------------------------
Address:
--------------------------------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it
is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer, including a
broker-dealer that will receive Exchange Securities for its own account in
exchange for Initial Securities that were acquired as a result of market-
making activities or other trading activities, it acknowledges that it will
deliver a prospectus in connection with any resale of such Exchange
Securities; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
1
