EXHIBIT 10.6
FEE AGREEMENT
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This FEE AGREEMENT, dated as of May 23, 2000 (the "Agreement"), by and
between Dynatech Corporation, a Delaware corporation (the "Company") and
Clayton, Dubilier & Rice, Inc., a Delaware corporation ("CD&R").
W I T N E S S E T H:
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
February 14, 2000 (the "Merger Agreement"), by and among the Company, Wavetek
Wandel Goltermann, Inc., a Delaware corporation ("WWG") and DWW Acquisition
Corporation, a Delaware corporation and an indirect subsidiary of the Company
("MergerCo"), MergerCo has merged with and into WWG (the "Merger") on the date
hereof;
WHEREAS, in connection with the Merger, the Company sold an aggregate
of 43.125 million shares of Company Common Stock to the Clayton, Dubilier & Rice
Fund V Limited Partnership ("Fund V") and the Clayton, Dubilier & Rice Fund VI
Limited Partnership ("Fund VI"; and together with Fund V and any other
investment vehicle managed by CD&R, the "CD&R Funds") for an aggregate purchase
price of $172.5 million (the "CD&R Funds Subscription");
WHEREAS, the CD&R Funds are managed by CD&R, and the general partner
of Fund V is Clayton, Dubilier & Rice Associates II Limited Partnership, a
Cayman Islands exempted limited partnership ("Associates II") and the general
partner of Fund VI is Clayton, Dubilier & Rice Associates VI Limited
Partnership, a Cayman Islands exempted limited partnership ("Associates VI";
together with Associates II and any general partner of any other investment
vehicle managed by CD&R, "CD&R Associates"), and the general partner of
Associates II is CD&R Investment Associates II, Inc., a Delaware corporation
("Associates II Inc.") and the general partner of Associates VI is CD&R
Investment Associates VI, Inc., a Delaware corporation ("Associates VI Inc.";
together with Associates II Inc. and any other general partner of CD&R
Associates, "Associates Inc.");
WHEREAS, the Company has previously entered into: (i) an
Indemnification Agreement, dated as of May 21, 1998 (the "Fund V Indemnification
Agreement"), by and among the Company, Dynatech LLC (formerly known as
Telecommunications Techniques Co., LLC), a Delaware limited liability company
("Dynatech LLC"), CD&R and Fund V, (ii) a Consulting Agreement, dated as of May
21, 1998 (the "Consulting Agreement"), by and among the Company, Dynatech LLC,
CD&R and Fund V, and (iii) an Indemnification Agreement, dated as of date hereof
(the "Fund VI Indemnification Agreement"; together with the Fund V
Indemnification Agreement, the "Indemnification Agreements"), by and among the
Company, Dynatech LLC, CD&R and Fund VI;
WHEREAS, the Company is entering into a Credit Agreement, dated as of
the date hereof, among the Company, Dynatech LLC, Wavetek Wandel Goltermann GmbH
and Dynatech Subworld Holdings GmbH, the lenders named therein, Morgan Guaranty
and Trust Company of New York, as Administrative Agent, Commerz Bank, as German
Term Loan Servicing Bank, Credit Suisse First Boston, as Syndication Agent and
The Chase Manhattan Bank and Bankers Trust Company, as Co-Documentation Agents,
providing for borrowing of up to a maximum principal amount of $860 million (the
"Senior Secured Financing"); and
WHEREAS, CD&R has performed financial, management advisory and other
services for the Company, including but not limited to assistance in connection
with (i) the preparation, negotiation, execution and delivery of the Merger
Agreement, (ii) the retention of legal, accounting, environmental, insurance,
investment banking, financial and other advisors and consultants in connection
with the Merger and the Senior Secured Financing, (iii) the preparation,
negotiation, execution and delivery of the commitment, fee and engagement
letters, purchase agreement, credit agreement, guarantee and collateral
agreement, pledge agreements and other security agreements, subscription
agreements, registration rights agreement amendment, transfer and paying agent
agreement, and other agreements, instruments and documents, relating to the
Merger and the Senior Secured Financing, (iv) the preparation and circulation of
information and offering memoranda, a registration statement and other materials
in connection with the Senior Secured Financing and (v) the structuring,
implementation and consummation of the Merger and the CD&R Funds Subscription
(all such services listed in clauses (i) - (v) collectively, the "Merger
Services").
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth and the mutual benefits to be derived herefrom,
the parties hereto hereby agree as follows:
1. Compensation; Payment of Expenses. (a) The Company agrees to
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pay to CD&R, concurrent with the execution of this Agreement, as compensation
for the Merger Services, a fee of $6,000,000.
2. Indemnification. (a) The Company confirms and reaffirms its
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obligations pursuant to the Indemnification Agreements. Without limiting the
generality of the foregoing, the Company confirms and agrees that (i) it shall
indemnify, defend and hold harmless CD&R, the CD&R Funds, CD&R Associates and
Associates Inc., their respective successors and assigns and each of the
respective directors, officers, partners, employees, agents, advisors,
representatives and controlling persons (within the meaning of the Securities
Act of 1933, as amended) and their respective successors and assigns
(collectively, "Indemnitees") from and against any and all claims, obligations,
liabilities, causes of action, actions, suits, proceedings, investigations,
judgments, decrees, losses, damages, fees, costs and expenses (including without
limitation interest, penalties and fees and disbursements of attorneys,
accountants, investment bankers and other professional advisors) (collectively,
"Obligations"), whether incurred with respect to third parties or otherwise, in
any way
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resulting from, arising out of or in connection with, based upon or relating to,
the performance of the Merger Services, except to the extent that any such
Obligation is found in a final judgment by a court having jurisdiction to have
resulted from the gross negligence or intentional misconduct of an Indemnitee,
(ii) no Indemnitee shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to the Company or their respective security
holders or creditors with respect to any Obligation in any way resulting from,
arising out of or in connection with, based upon or relating to, the performance
of the Merger Services, except to the extent that any such Obligation is found
in a final judgment by a court having jurisdiction to have resulted from the
gross negligence or intentional misconduct of an Indemnitee, and (iii) the
rights of each Indemnitee to be indemnified under any agreement, document,
certificate or instrument or applicable law are independent of and in addition
to any rights of such Indemnitee under any other agreement, document,
certificate or instrument or applicable law.
(b) The Company hereby agrees to advance costs and expenses,
including attorneys' fees, incurred by CD&R (acting on its own behalf or, if
requested by any such Indemnitee other than itself, on behalf of such
Indemnitee) or any Indemnitee in defending any claim relating to any Obligation
in advance of the final disposition of such claim within 30 days of receipt from
CD&R of (i) a notice setting forth the amount of such costs and expenses (a
"Payment Notice") and (ii) an undertaking by or on behalf of CD&R or such
Indemnitee to repay amounts so advanced if it shall ultimately be determined
that CD&R or such Indemnitee is not entitled to be indemnified by the Company as
authorized by this Agreement. CD&R may submit Payment Notices to the Company
monthly.
3. Independent Contractor Status. The parties agree that CD&R shall
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perform services hereunder as an independent contractor, retaining control over
and responsibility for its own operations and personnel. Neither CD&R nor any
of its employees or agents shall, solely by virtue of this Agreement or the
arrangements hereunder, be considered employees or agents of the Company nor
shall any of them have authority to contract in the name of or bind the Company,
except as expressly agreed to in writing by the Company. The Company hereby
acknowledges and agrees that the agreements, arrangements or understandings
entered into by CD&R on behalf of the Company, MergerCo or any of their
respective subsidiaries prior to the date hereof in connection with the Merger
(including, but not limited to, any confidentiality agreements and agreements
with brokers or finders) and set forth on a schedule attached hereto shall be
obligations of the Company binding on it to the same extent as such obligations
may be binding on CD&R, and the Company shall fully perform, and indemnify and
hold harmless CD&R from and against, all such obligations. Any duties of CD&R
arising out of its engagement to perform services hereunder shall be owed solely
to the Company.
4. Notices. Any notice or other communication required or permitted
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to be given or made under this Agreement by one party to the other parties shall
be in writing and shall be deemed to have been duly given and effective (i) on
the date of delivery if
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delivered personally or (ii) when sent if sent by prepaid telegram, or mailed
first-class, postage prepaid, registered or certified mail, or facsimile
transmission as follows (or to such other address as shall be given in writing
by one party to the other parties in accordance herewith):
If to the Company, to:
Dynatech Corporation
Corporate Headquarters
3 New England Executive Park
Burlington, Massachusetts 01803-5087
Facsimile: (781) 229-8850
Telephone: (781) 221-2012
Attention: General Counsel
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If to CD&R, to:
Clayton, Dubilier & Rice, Inc.
375 Park Avenue
18th Floor
New York, New York 10152
Telephone: (212) 407-5200
Telecopy: (212) 407-5252
Attention: Joseph L. Rice, III
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with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telephone: (212) 909-6000
Telecopy: (212) 909-6836
Attention: Franci J. Bladdberg, Esq.
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5. Entire Agreement. This Agreement, together with the
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Indemnification Agreements, (i) contains the complete and entire understanding
and agreement of CD&R, Dynatech LLC and the Company with respect to the subject
matter hereof and (ii) supersedes all prior and contemporaneous understandings,
conditions and agreements, oral or written, express or implied, in respect of
the subject matter hereof, including but not limited to in respect of the
engagement of CD&R in connection with the subject matter hereof. There are no
representations or warranties of CD&R in connection with this Agreement or the
services to be provided hereunder, except as expressly made and contained in
this Agreement.
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6. Headings. The headings contained in this Agreement are for
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purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
7. Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
8. Binding Effect; Assignment. This Agreement shall be binding upon
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and inure to the benefit of the parties to this Agreement and their respective
successors and assigns and to each Indemnitee, provided that none of CD&R, the
Company or Dynatech LLC may assign any of its rights or obligations under this
Agreement without the express written consent of the other party hereto. This
Agreement is not intended to confer any right or remedy hereunder upon any
person other than the parties to this Agreement and their respective successors
and permitted assigns and each Indemnitee.
9. Governing Law. This Agreement shall be governed in all respects
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including as to validity, interpretations and effects by the laws of the State
of New York, without giving effect to its principles or rules of conflict of
laws to the extent such principles or rules would require or permit the
application of the laws of another jurisdiction. The Company, Dynatech LLC and
CD&R hereby irrevocably submit to the jurisdiction of the courts of the State of
New York and the Federal courts of the United States of America, in each case
located in the State, City and County of New York, solely in respect of the
interpretation and enforcement of the provisions of this Agreement, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in such courts or that the venue thereof may not be appropriate or that this
Agreement may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a New York State or Federal court. The
Company, Dynatech LLC and CD&R hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of any
such dispute and agree that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in Section 4, or in
such other manner as may be permitted by law, shall be valid and sufficient
service thereof.
10. Waiver of Jury Trial. Each party hereto acknowledges and agrees
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that any controversy that may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore it hereby irrevocably and
unconditionally waives any right it may have to a trial by jury in respect of
any litigation directly or indirectly arising out of or relating to this
Agreement, or the breach, termination or validity of this Agreement, or the
transactions contemplated by this Agreement. Each party certifies and
acknowledges that (i) no representative, agent or attorney of any other party
has represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver, (ii) it understands
and has considered the implications of this
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waiver, (iii) it makes this waiver voluntarily, and (iv) it has been induced to
enter into this Agreement by, among other things, the mutual waivers and
certifications contained in this Section 10.
11. Amendment; Waivers. No amendment, modification, supplement or
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discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party or Indemnitee against
whom enforcement of the amendment, modification, supplement, discharge or waiver
is sought (and in the case of the Company, approved by resolution of the Board
of Directors of the Company). Any such waiver shall constitute a waiver only
with respect to the specific matter described in such writing and shall in no
way impair the rights of the party or Indemnitee granting such waiver in any
other respect or at any other time. Neither the waiver by any of the parties
hereto or any 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 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
of such provisions, rights, power or privileges hereunder. The rights and
remedies herein provided are cumulative and are not exclusive of any rights or
remedies that any party or Indemnitee may otherwise have at law or in equity or
otherwise.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
CLAYTON, DUBILIER & RICE, INC.
By: /s/ Donald J. Gogel
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Name: Donald J. Gogel
Title: President, Chief Executive Officer,
Secretary and Assistant Treasurer
DYNATECH CORPORATION
By: /s/ Allan M. Kline
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Name: Allan M. Kline
Title: Vice President
DYNATECH LLC
By: Dynatech Corporation, its sole member
By: /s/ Allan M. Kline
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Name: Allan M. Kline
Title: Vice President
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