EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
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INDEMNIFICATION AGREEMENT, dated as of May 23, 2000 (the "Agreement"),
by and among Dynatech Corporation, a Delaware corporation (the "Company"),
Dynatech LLC, a Delaware limited liability company and wholly-owned subsidiary
of the Company ("Dynatech LLC"), Clayton, Dubilier & Rice Fund VI Limited
Partnership, a Cayman Islands exempted limited partnership ("Fund VI"; together
with any other investment vehicle managed by CD&R, the "CD&R Fund") and
Clayton, Dubilier & Rice, Inc., a Delaware corporation ("CD&R"). Capitalized
terms used herein and not otherwise defined have the meanings set forth in
Section 1 of this Agreement.
WHEREAS, the Company, DWW Acquisition Corporation, a Delaware
corporation ("MergerCo") and Wavetek Wandel Goltermann, Inc., a Delaware
corporation ("WWG"), entered into an Agreement and Plan of Merger, dated as of
February 14, 2000 (the "Merger Agreement"), providing for the merger (the
"Merger") of MergerCo with and into WWG, with WWG continuing as the surviving
corporation and a wholly-owned subsidiary Dynatech LLC;
WHEREAS, in connection with the Merger, the Company sold 30.625
million shares of Common Stock to the CD&R Fund for $122.5 million (the "CD&R
Fund Subscription");
WHEREAS, in connection with the Merger and the related equity
financing of the Merger, the Company made a rights offering (the "Rights
Offering") of Common Stock to its stockholders of record on April 20, 2000
(other than the Clayton, Dubilier & Rice Fund V Limited Partnership);
WHEREAS, in connection with the Rights Offering, the CD&R Fund (other
than the Clayton, Dubilier & Rice Fund V Limited Partnership) agreed to act as
standby purchasers to purchase any shares of Common Stock not purchased by
eligible stockholders in the Rights Offering;
WHEREAS, following the CD&R Fund Subscription and the purchase of
shares as a standby purchasers in the Rights Offering, if any, the CD&R Fund
will be a significant stockholder of the Company;
WHEREAS, the CD&R Fund is managed by CD&R, and the general partner of
the CD&R Fund is CD&R Associates VI Limited Partnership, a Cayman Islands
exempted limited partnership (together with any general partner of any other
investment vehicle managed by CD&R, "CD&R Associates"), and the general partner
of CD&R Associates is CD&R Investment Associates VI, Inc. (including any Person
that may become a general partner thereof in the future, "Associates Inc.");
WHEREAS, the Company and CD&R are parties to the Consulting Agreement,
dated as of May 21, 1998, as amended from time to time (the "Consulting
Agreement");
WHEREAS, in connection with the offer (the "Note Tender") by WWG to
purchase its 10-1/8% Senior Subordinated Notes due 2007 (the "Notes"), the
Company prepared and sent to the holders of such Notes an Offer to Purchase and
Consent Solicitation Statement, dated March 14, 2000 (as the same may be amended
from time to time, the "Offer to Purchase and Consent Solicitation Statement");
WHEREAS, in order to finance the Merger and the Note Tender and to
refinance existing debt and provide liquidity for ongoing business needs, the
Company entered into a Credit Agreement, dated as of May __, 2000, among
Dynatech LLC, the German Borrowers named therein, J.P. Morgan Securities Inc.,
as arranger, Morgan Guaranty Trust Company of New York, as Administrative Agent,
Credit Suisse First Boston, as Syndication Agent, and the other lenders named
therein, providing for borrowing of up to a maximum principal amount of $860
million (the "Senior Secured Credit Facilities");
WHEREAS, CD&R has performed financial, management advisory and other
services for the Company, including but not limited to providing assistance in
connection with (i) the preparation of the Offer to Purchase and Consent
Solicitation Statement, (ii) the retention of various financial and other
advisors and consultants in connection with the Transactions and the Securities
Offerings, (iii) the preparation, negotiation, execution and delivery of the
commitment, fee and engagement letters, credit agreements, indenture
supplements, guarantees, mortgages, pledge agreements and other security
agreements, subscription, registration rights agreements, dealer manager
agreements, and other agreements, instruments and documents, relating to the
Senior Secured Credit Facilities, the Note Tender, or otherwise relating to the
Financing or the Transactions, (iv) the preparation and circulation of
information and offering memoranda and other materials in connection with the
Senior Secured Credit Facilities and a registration statement in connection the
Rights Offering and (v) the structuring, implementation and consummation of the
foregoing transactions;
WHEREAS, the Company or one or more of its Subsidiaries from time to
time in the future (a) may offer and sell or cause to be offered and sold equity
or debt securities (such offerings collectively referred to as the "Subsequent
Offerings"), including without limitation (i) offerings of shares of common
stock of the Company, and/or options to purchase such shares, to employees,
directors, managers and consultants of and to the Company or any Subsidiary (a
"Management Offering"), and (ii) one or more offerings of debt securities for
the purpose of refinancing any indebtedness of the Company or any Subsidiary or
for other corporate purposes, and (b) may repurchase, redeem or otherwise
acquire certain securities (and options in respect thereof) of the Company or
one or more of its Subsidiaries (any such repurchase or redemption being
referred to herein as a "Redemption");
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WHEREAS, the parties hereto recognize the possibility that claims
might be made against and liabilities incurred by CD&R, the CD&R Fund, CD&R
Associates, Associates Inc. or related persons or affiliates under applicable
securities laws or otherwise in connection with the Transactions or the
Securities Offerings, or relating to other actions or omissions of or by the
Company or its Subsidiaries, or relating to the provision by CD&R of management
consulting, monitoring and financial advisory services to the Company or its
Subsidiaries, and the parties hereto accordingly wish to provide for CD&R, the
CD&R Fund, CD&R Associates, Associates Inc. and related persons and affiliates
to be indemnified in respect of any such claims and liabilities;
NOW, THEREFORE, in consideration of the foregoing premises, and the
mutual agreements and covenants and provisions herein set forth, the parties
hereto hereby agree as follows:
1. Definitions.
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(a) "Claim" means with respect to any Indemnitee, any claim against
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such Indemnitee involving any Obligation with respect to which such Indemnitee
may be entitled to be defended and indemnified by the Company under this
Agreement.
(b) "Common Stock" means the common stock, par value $.01 per share,
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of the Company.
(c) "Financing" means the financing provided for by the Senior
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Secured Credit Facilities.
(d) "Indemnitee" means each of CD&R, the CD&R Fund, CD&R Associates,
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Associates Inc., their respective successors and assigns, and each of their
respective directors, officers, partners, employees, agents, advisors,
representatives, holders of voting securities and controlling persons (within
the meaning of the Securities Act) and their respective successors and assigns,
and any Person (other than the Company and its Subsidiaries) that controls, is
controlled by, or is under common control with, CD&R, and the directors,
officers, partners, employees, agents, advisors, representatives, holders of
voting securities and controlling persons (within the meaning of the Securities
Act) of such Person and their respective successors and assigns.
(e) "Person" means any individual, partnership, joint venture,
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corporation, limited liability company, trust, unincorporated organization or
other entity.
(f) "Obligations" means, collectively, any and all claims,
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obligations, liabilities, causes of actions, actions, suits, proceedings,
investigations, judgments, decrees, losses, damages, fees, costs and expenses
(including without limitation interest, penalties and fees and disbursements of
attorneys, accountants, investment bankers and other professional
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advisors), in each case whether incurred, arising or existing with respect to
third parties at any time or from time to time.
(g) "Related Document" means any agreement, certificate, instrument or
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other document to which the Company or any Subsidiary may be a party or by which
it or any of its properties or assets may be bound or affected from time to time
relating in any way to the Transactions or any Securities Offering or any of the
transactions contemplated thereby, including without limitation, in each case as
the same may be amended, modified, waived or supplemented from time to time, (A)
any registration statement filed by or on behalf of the Company or any
Subsidiary with the Commission in connection with the Transactions or any
Securities Offering, including all exhibits, financial statements and schedules
appended thereto, and any submissions to the Commission in connection therewith,
(B) any prospectus, preliminary or otherwise, included in such registration
statements or otherwise filed by or on behalf of the Company or any Subsidiary
in connection with the Transactions or any Securities Offering or used to offer
or confirm sales of their respective securities in any Securities Offering, (C)
any private placement or offering memorandum or circular, or other information
or materials distributed by or on behalf of the Company or any Subsidiary or any
placement agent or underwriter in connection with the Transactions or any
Securities Offering, (D) any federal, state or foreign securities law or other
governmental or regulatory filings or applications made in connection with any
Securities Offering, the Transactions, or any of the transactions contemplated
thereby, (E) any deal-manager, underwriting, subscription, purchase,
stockholders, option or registration rights agreement or plan entered into or
adopted by the Company or any Subsidiary in connection with the Transactions or
any Securities Offerings, (F) any quarterly, annual or current reports filed by
the Company or any Subsidiary with the Commission or any prospectus, proxy
statement or transaction statements filed by or on behalf of the Company, any
Subsidiary or any Indemnitee with the Commission in connection with the
Transactions or any transaction contemplated thereby, including all exhibits,
financial statements and schedules appended thereto, and any submission to the
Commission in connection therewith.
(h) "Securities Offerings" means the CD&R Fund Subscription, the
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Rights Offering, any Redemption, any Management Offering and any other
Subsequent Offering.
(i) "Subsidiary" means each corporation or other person or entity in
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which the Company owns or controls, directly or indirectly, capital stock or
other equity interests representing at least 25% of the outstanding voting stock
or other equity interests.
(j) "Transactions" means the CD&R Fund Subscription, the Merger, the
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Note Tender, the Financing and the Rights Offering.
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2. Indemnification.
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(a) Each of the Company and Dynatech LLC (each an "Indemnifying
Party" and collectively, the "Indemnifying Parties") jointly and severally agree
to indemnify, defend and hold harmless each Indemnitee:
(i) from and against any and all Obligations in any way resulting
from, arising out of or in connection with, based upon or relating to (A)
the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any other applicable securities or other laws, in
connection with any Transaction, any Securities Offering, any Related
Document or any of the transactions contemplated thereby, (B) any other
action or failure to act of the Company or any Subsidiary or any of their
predecessors, whether such action or failure has occurred or is yet to
occur or (C) except to the extent that any such Obligation is found in a
final judgment by a court of competent jurisdiction to have resulted from
the gross negligence or wilful or intentional misconduct of any of the
Indemnitees, the performance by CD&R of management consulting, monitoring,
financial advisory or other services for the Company or any Subsidiary
(whether performed prior to the date hereof, hereafter, pursuant to the
Consulting Agreement or otherwise); and
(ii) to the fullest extent permitted by applicable law, from and
against any and all Obligations in any way resulting from, arising out of
or in connection with, based upon or relating to (A) the fact that such
Indemnitee is or was a director or an officer of the Company or any
Subsidiary, as the case may be, or is or was serving at the request of such
corporation as a director, officer, employee or agent of or advisor or
consultant to another corporation, partnership, joint venture, trust or
other enterprise or (B) any breach or alleged breach by such Indemnitee of
his or her fiduciary duty as a director or an officer of the Company or any
Subsidiary, as the case may be;
in each case including, but not limited to, any and all reasonable fees, costs
and expenses (including without limitation reasonable fees and disbursements of
attorneys) incurred by or on behalf of any Indemnitee in asserting, exercising
or enforcing any of its rights, powers, privileges or remedies in respect of
this Agreement or the Consulting Agreement.
(b) Without in any way limiting the foregoing Section 2(a), each
Indemnifying party agrees, jointly and severally, to indemnify, defend and hold
harmless each Indemnitee from and against any and all Obligations resulting
from, arising out of or in connection with, based upon or relating to
liabilities under the Securities Act, the Exchange Act or any other applicable
securities or other laws, rules or regulations in connection with (i) the
inaccuracy or breach of or default under any representation, warranty, covenant
or agreement in any Related Document, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any Related Document or (iii)
any omission or alleged omission to state in any
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Related Document a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(c) Notwithstanding the foregoing provisions of this Section 2, the
Company shall not be obligated to indemnify any Indemnitee from and against any
such Obligation to the extent that such Obligation arises out of or is based
upon an untrue statement or omission made in a Related Document in reliance upon
and in conformity with written information furnished by any of the Indemnitees
to the Company expressly for use in the preparation of such Related Document.
3. Contribution.
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(a) Except to the extent that Section 3(b) is applicable, if for any
reason the indemnity provided for in Section 2(a) is unavailable or is
insufficient to hold harmless any Indemnitee from any of the Obligations covered
by such indemnity, then the Indemnifying Parties, jointly and severally, shall
contribute to the amount paid or payable by such Indemnitee as a result of such
Obligation in such proportion as is appropriate to reflect (i) the relative
fault of the Company and the Subsidiaries, on the one hand, and the Indemnitees,
on the other, in connection with the state of facts giving rise to such
Obligation, (ii) if such Obligation results from, arises out of, is based upon
or relates to the Transactions or any Securities Offering, the relative benefits
received by the Company and the Subsidiaries, on the one hand, and the
Indemnitees, on the other, from such Transaction or Securities Offering and
(iii) if required by applicable law, any other relevant equitable
considerations.
(b) If for any reason the indemnity specifically provided for in
Section 2(b) is unavailable or is insufficient to hold harmless any Indemnitee
from any of the Obligations covered by such indemnity, then the Indemnifying
Parties, jointly and severally, shall contribute to the amount paid or payable
by the Indemnitees as a result of such Obligation in such proportion as is
appropriate to reflect (i) the relative fault of the Company and the
Subsidiaries, on the one hand, and the Indemnitees, on the other, in connection
with the information contained in or omitted from any Related Document, which
inclusion or omission resulted in the inaccuracy or breach of or default under
any representation, warranty, covenant or agreement therein, or which
information is or is alleged to be untrue, required to be stated therein or
necessary to make the statements therein not misleading, (ii) the relative
benefits received by the Company and the Subsidiaries, on the one hand, and the
Indemnitees, on the other, from such Transaction or Securities Offering and
(iii) if required by applicable law, any other relevant equitable
considerations.
(c) For purposes of Section 3(a), the relative fault of the Company
and the Subsidiaries, on the one hand, and of the Indemnitees, on the other,
shall be determined by reference to, among other things, their respective
relative intent, knowledge, access to information and opportunity to correct the
state of facts giving rise to such Obligation. For purposes of Section 3(b),
the relative fault of the Company and the Subsidiaries on the one hand,
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and of the Indemnitees, on the other, shall be determined by reference to, among
other things, (i) whether the included or omitted information relates to
information supplied by the Company or the Subsidiaries on the one hand, or by
the Indemnitees, on the other, and (ii) their respective relative intent,
knowledge, access to information and opportunity to correct such inaccuracy,
breach, default, untrue or alleged untrue statement, or omission or alleged
omission. For purposes of Section 3(a) or 3(b), the relative benefits received
by the Company and the Subsidiaries, on the one hand, and the Indemnitees, on
the other, shall be determined by weighing the direct monetary proceeds to the
Company and the Subsidiaries, on the one hand, and the Indemnitees, on the
other, from such Securities Offering.
(d) The parties hereto acknowledge and agree that it would not be
just and equitable if contributions pursuant to Section 3(a) or 3(b) were
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to in such
respective Section. The Company shall not be liable under Section 3(a) or 3(b),
as applicable, for contribution to the amount paid or payable by any Indemnitee
except to the extent and under such circumstances as the Indemnifying Party
would have been liable to indemnify, defend and hold harmless such Indemnitee
under the corresponding Section 2(a) or 2(b) (in either case as interpreted by
Section 2(c)), as applicable, if such indemnity were enforceable under
applicable law. No Indemnitee shall be entitled to contribution from an
Indemnifying Party with respect to any Obligation covered by the indemnity
specifically provided for in Section 2(b) in the event that such Indemnitee is
finally determined to be guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) in connection with such
Obligation and the Company is not guilty of such fraudulent misrepresentation.
4. Indemnification Procedures.
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(a) Whenever any Indemnitee shall have actual knowledge of the
reasonable likelihood of the assertion of a Claim, CD&R (acting on its own
behalf or, if requested by any such Indemnitee other than itself, on behalf of
such Indemnitee) or such Indemnitee shall notify the Indemnifying Parties in
writing of the Claim (the "Notice of Claim") with reasonable promptness after
such Indemnitee has such knowledge relating to such Claim and has notified CD&R
thereof. The Notice of Claim shall specify all material facts known to CD&R (or
if given by such Indemnitee, such Indemnitee) that may give rise to such Claim
and the monetary amount or an estimate of the monetary amount of the Obligation
involved if CD&R (or if given by such Indemnitee, such Indemnitee) has knowledge
of such amount or a reasonable basis for making such an estimate. The failure
of CD&R to give such Notice of Claim shall not relieve the Indemnifying Parties
of their indemnification obligations under this Agreement except to the extent
that such omission results in a failure of actual notice to the Company and it
is materially injured as a result of the failure to give such Notice of Claim.
The Company shall, at its expense, undertake the defense of such Claim with
attorneys of its own choosing reasonably satisfactory to CD&R. CD&R may
participate in such defense with counsel of CD&R's choosing at its own expense.
In the event that the Company does not undertake the defense of the Claim within
a
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reasonable time after CD&R has given the Notice of Claim, or in the event that
CD&R shall in good faith determine that, in the defense of any claim, the
interests of the Indemnifying Parties may be in conflict with those of any
Indemnitee, CD&R may, at the expense of the Indemnifying Parties and after
giving notice to the Indemnifying Parties of such action, (i) undertake the
defense of the Claim and (ii) with the consent of the Indemnifying Parties
(which shall not be unreasonably withheld or delayed), compromise or settle the
Claim, all for the account of and at the risk of the Indemnifying Parties. In
the defense of any Claim, (x) the Indemnifying Parties shall act diligently and
in good faith and (y) the Indemnifying Parties shall not (where it is in control
of such Claim), except with the consent of CD&R, and CD&R shall not (where it is
in control of such Claim), except with the consent of the Indemnifying Parties,
consent to entry of any judgment or enter into any settlement that includes any
injunctive or other non-monetary relief, or that does not include as an
unconditional term thereof the giving by the person or persons asserting such
Claim to such Indemnitee of a release from all liability with respect to such
Claim. In each case, CD&R and each Indemnitee seeking indemnification hereunder
will cooperate with the Indemnifying Parties, so long as the Indemnifying
Parties are conducting the defense of the Claim, in the preparation for and the
prosecution of the defense of such Claim, including making available evidence
within the control of CD&R or such Indemnitee, as the case may be, and persons
needed as witnesses who are employed by CD&R or such Indemnitee, as the case may
be, in each case as reasonably needed for such defense and at cost, which cost,
to the extent reasonably incurred, shall be paid by the Indemnifying Parties.
(b) The Indemnifying Parties hereby agree, jointly and severally, to
advance reasonable costs and expenses, including attorney's fees, incurred by
CD&R (acting on its own behalf or, if requested by any such Indemnitee other
than itself, on behalf of such Indemnitee) in defending any Claim in advance of
the final disposition of such Claim upon receipt of an undertaking by or on
behalf of CD&R to repay amounts so advanced if it shall ultimately be determined
that CD&R or such Indemnitee is not entitled to be indemnified by the
Indemnifying Parties as authorized by this Agreement.
(c) CD&R shall notify the Indemnifying Parties in writing of the
amount of any Claim actually paid by CD&R (the "Notice of Payment") in
accordance with this Agreement. The amount of any Claim actually paid by CD&R
shall bear simple interest at the rate equal to Chase Manhattan Bank's prime
rate as of the date of such payment plus 2% per annum, from the date the Company
receives the Notice of Payment to the date on which the Indemnifying Parties
shall repay the amount of such Claim plus interest thereon, if any, to CD&R.
5. Certain Covenants; Other Indemnities. The rights of each
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Indemnitee to be indemnified under any other agreement, document, certificate or
instrument or applicable law are independent of and in addition to any rights of
such Indemnitee to be indemnified under this Agreement. The rights of each
Indemnitee and the obligations of the Indemnifying Parties hereunder shall
remain in full force and effect regardless of any investigation made by or on
behalf of such Indemnitee. The Indemnifying Parties shall implement and
maintain in full force and effect any and all corporate articles or charter and
by-law provisions that may be necessary
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or appropriate to enable them to carry out their obligations hereunder to the
fullest extent permitted by applicable corporate law, including without
limitation a provision of its certificate of incorporation eliminating liability
of a director for breach of fiduciary duty to the fullest extent permitted by
applicable corporate law, as it may be amended from time to time.
6. Notices. All notices and other communications hereunder shall be
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in writing and shall be delivered by certified or registered mail (first class
postage prepaid and return receipt requested), facsimile, overnight courier or
hand delivery, as follows:
If to the Company or Dynatech LLC, to:
Dynatech Corporation
3 New England Executive Park
Burlington, MA 01803
Telephone: 781-221-2008
Facsimile: 781-229-8850
Attention: President
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with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telephone: (212) 909-6000
Facsimile: (212) 909-6836
Attention: Franci J. Blassberg, Esq.
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if to the CD&R Fund, to:
Clayton, Dubilier & Rice
Fund VI Limited Partnership
1403 Foulk Road, Suite 106
Wilmington, Delaware 19803
Attention: Brian Finn
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with a copy to:
Clayton, Dubilier & Rice, Inc.
375 Park Avenue, 18th Floor
New York, New York 10152
Telephone: (212) 407-5200
Facsimile: (212) 407-5252
Attention: Brian Finn
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if to CD&R or any other Indemnitee to:
Clayton, Dubilier & Rice, Inc.
375 Park Avenue, 18th Floor
New York, New York 10152
Telephone: (212) 407-5200
Facsimile: (212) 407-5252
Attention: Brian Finn
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with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telephone: (212) 909-6000
Facsimile: (212) 909-6836
Attention: Franci J. Blassberg, Esq.
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All communications hereunder shall be effective upon receipt by the party to
which they are addressed.
7. Governing Law. This Agreement shall be governed in all respects,
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including as to validity, interpretation and effect, by the law of the State of
New York without giving effect to its principles or rules of conflict of laws to
the extent such principles or rules would require or permit the application of
the laws of another jurisdiction, except to the extent that the corporate law of
another jurisdiction specifically and mandatorily applies, in which case such
law shall apply.
8. Severability. If any provision or provisions of this Agreement
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shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
9. Miscellaneous. The headings contained in this Agreement are for
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reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. This Agreement shall be binding upon and
inure to the benefit of each party hereto and its successors and permitted
assigns, and each other Indemnitee, but neither this Agreement nor any right,
interest or obligation hereunder shall be assigned, whether by operation of law
or otherwise, by the Company or Dynatech LLC, without the prior written consent
of CD&R. This Agreement is not intended to confer any right or remedy hereunder
upon any person other than each of the parties hereto and their respective
successors and permitted assigns and each other Indemnitee. No amendment,
modification, supplement or discharge of this Agreement, and no waiver hereunder
shall be valid and binding unless set forth in writing and duly executed by the
party or other Indemnitee against whom enforcement of the amendment,
modification,
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supplement or discharge is sought. Neither the waiver by any of the parties
hereto or any other Indemnitee of a breach of or a default under any of the
provisions of this Agreement, nor the failure by any party hereto or any other
Indemnitee on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right, powers or privilege hereunder, shall be
construed as a waiver of any other breach or default of a similar nature, or as
a waiver of any provisions hereof, or any rights, powers or privileges
hereunder. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies that any party or other Indemnitee may
otherwise have at law or in equity or otherwise. This Agreement may be executed
in several counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement by their authorized representatives as of the date first above
written.
DYNATECH CORPORATION
By: /s/ Mark Tremallo
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Name: Mark V.B. Tremallo
Title: Corporate Vice President and
General Counsel
DYNATECH LLC
By: /s/ Mark Tremallo
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Name: Mark V.B. Tremallo
Title: Corporate Vice President and
General Counsel
CLAYTON, DUBILIER & RICE
FUND VI LIMITED PARTNERSHIP
By: CD&R Associates VI Limited Partnership,
the General Partner
By: CD&R Investment Associates VI, Inc.,
its General Partner
By: /s/ Donald J. Gogel
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Name: Donald J. Gogel
Title: President, Chief Executive Officer,
Secretary and Assistant Treasurer
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CLAYTON, DUBILIER & RICE
By: /s/ Donald J. Gogel
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Name: Donald J. Gogel
Title: President, Chief Executive Officer,
Secretary and Assistant Treasurer
CLAYTON, DUBILIER & RICE
FUND VI-A LIMITED PARTNERSHIP
By: CD&R Associates VI Limited Partnership,
the General Partner
By: CD&R Investment Associates VI, Inc.,
its general partner
By: ____________________________________________
Name:
Title:
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