EXHIBIT 99.1
SUBSCRIPTION AGENT AGREEMENT (Company)
This Subscription Agent Agreement (the "Agreement") is made as of April 12,
2000 between Dynatech Corporation (the "Company") and EquiServe Trust Company,
N.A. as subscription agent (the "Agent"). All terms not defined herein shall
have the meaning given in the prospectus (the "Prospectus") included in the
Registration Statement on Form S-3 to be filed by the Company with the
Securities and Exchange Commission, as amended by any amendment filed with
respect thereto (the "Registration Statement").
WHEREAS, the Company proposes to make a subscription offer (the "Offering")
by issuing certificates or other evidences of subscription rights, in the form
designated by the Company (the "Subscription Certificates") to shareholders of
record (the "Shareholders") of its Common Stock, par value $0.01 per share
("Common Stock"), as of April 20, 2000, the record date specified by the
Company (the "Record Date"), pursuant to which each Shareholder will have
certain rights (the "Rights") to subscribe for newly issued shares of Common
Stock, as described in and upon such terms as are set forth in the Prospectus,
a final copy of which has been or, upon availability will promptly be,
delivered to the Agent; and
WHEREAS, the Company wishes the Agent to perform certain acts on behalf of
the Company, and the Agent is willing to so act, in connection with the
Offering, all upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements set forth herein, the parties agree as follows:
1. Appointment. The Company hereby appoints the Agent to act as subscription
agent in connection with the Offering in accordance with the terms set forth in
this Agreement and the Agent hereby accepts such appointment.
2. Form and Execution of Subscription Certificates.
(a) Each Subscription Certificate shall be irrevocable and non-transferable.
The Agent shall, in its capacity as Transfer Agent of the Company, maintain a
register of Subscription Certificates and the holders of record thereof (each
of whom shall be deemed a "Shareholder" hereunder for purposes of determining
the rights of holders of Subscription Certificates). Each Subscription
Certificate shall, subject to the provisions thereof, entitle the Shareholder
in whose name it is recorded to the following:
(1) With respect to Record Date Shareholders only, the right to acquire
during the Subscription Period, as defined in the Prospectus, at the
Subscription Price, as defined in the Prospectus, a number of shares of
Common Stock equal to one share of Common Stock for every one Right (the
"Basic Subscription Privilege"); and
(2) The right to subscribe for additional shares of Common Stock,
subject to the availability of such shares and to the allotment of such
shares as may be available on the basis specified in the Prospectus;
provided, however, that such Shareholder has exercised its Basic
Subscription Privilege in full (the "Oversubscription Privilege").
3. Rights and Issuance of Subscription Certificates.
(a) Each Subscription Certificate shall evidence the Rights of the
Shareholder therein named to purchase Common Stock upon the terms and
conditions therein and herein set forth.
(b) Upon the written advice of the Company, signed by any of its duly
authorized officers, as to the Record Date, the Agent shall, from a list of the
Company Shareholders as of the Record Date to be prepared by the Agent in its
capacity as Transfer Agent of the Company, prepare and record Subscription
Certificates in the names of the Shareholders, setting forth the number of
Rights to subscribe for the Company's Common Stock calculated on the basis of a
ratio to be set forth in the Prospectus and provided to the Agent by the
Company
for such purpose. The number of Rights that are issued to Shareholders will be
rounded up, by the Agent, to the nearest number of whole Rights as fractional
Rights will not be issued. Each Subscription Certificate shall be dated as of
the Record Date and shall be executed manually or by facsimile signature of a
duly authorized officer of the Agent. Upon the written advice, signed as
aforesaid, as to the effective date of the Registration Statement, the Agent
shall promptly countersign and deliver the Subscription Certificates, together
with a copy of the Prospectus, instruction letter and any other document as the
Company deems necessary or appropriate, to all Shareholders with record
addresses in the United States (including its territories and possessions and
the District of Columbia). Delivery shall be by first class mail (without
registration or insurance), except for those Shareholders having a registered
address outside the United States (who will only receive copies of the
Prospectus, instruction letter and other documents as the Company deems
necessary or appropriate, if any), delivery shall be by air mail (without
registration or insurance) and by first class mail (without registration or
insurance) to those Shareholders having APO or FPO addresses. No Subscription
Certificate shall be valid for any purpose unless so executed.
(c) The Agent will mail a copy of the Prospectus, instruction letter, a
special notice and other documents as the Company deems necessary or
appropriate, if any, but not Subscription Certificates to Shareholders whose
record addresses are outside the United States (including its territories and
possessions and the District of Columbia ) ("Foreign Shareholders"). The Rights
to which such Subscription Certificates relate will be held by the Agent for
such Foreign Record Date Shareholders' accounts until instructions are received
to exercise, sell or transfer the Rights.
4. Exercise.
(a) Shareholders may acquire shares of Common Stock under their Basic
Subscription and Oversubscription Privileges by delivering to the Agent as
specified in the Prospectus (i) the Subscription Certificate with respect
thereto, duly executed by such Shareholder in accordance with and as provided
by the terms and conditions of the Subscription Certificate, together with (ii)
the purchase price as disclosed in the Prospectus for each share of Common
Stock subscribed for by exercise of such Basic Subscription and
Oversubscription Privileges, in U.S. dollars by wire transfer of immediately
available funds, or by money order or check drawn on a bank in the United
States, in each case payable to the order of the Agent.
(b) Rights may be exercised at any time after the date of issuance of the
Subscription Certificates with respect thereto but no later than 5:00 P.M. New
York time on such date as the Company shall designate to the Agent in writing
(the "Expiration Date"). For the purpose of determining the time of the
exercise of any Rights, delivery of any material to the Agent shall be deemed
to occur when such materials are received at the Shareholder Services Division
of the Agent specified in the Prospectus.
(c) Notwithstanding the provisions of Section 4 (a) and 4 (b) regarding
delivery of an executed Subscription Certificate to the Agent prior to 5:00
P.M. New York time on the Expiration Date, if prior to such time the Agent
receives a Notice of Guaranteed Delivery by facsimile (telecopy) or otherwise
from a bank, a trust company or a New York Stock Exchange member guaranteeing
delivery of (i) payment of the full Subscription Price for the shares of Common
Stock subscribed for shares subscribed for under the Basic Subscription and
Oversubscription Privileges, and (ii) a properly completed and executed
Subscription Certificate, then such exercise of Basic Subscription and
Oversubscription Privileges shall be regarded as timely, subject, however, to
receipt of the duly executed Subscription Certificate and full payment for the
Common Stock by the Agent within three Business Days (as defined below) after
the Expiration Date (the "Protect Period"). For the purposes of the Prospectus
and this Agreement, "Business Day" shall mean any day on which trading is
conducted on the New York Stock Exchange.
(d) Any excess payment to be refunded by the Company to a Shareholder will
be mailed by the Agent as soon as practicable after the Expiration Date. The
Agent will not issue or deliver certificates for shares subscribed for until
payment in full therefore has been received, including collection of checks and
payment pursuant to notices of guaranteed delivery.
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5. Validity of Subscriptions. Irregular subscriptions not otherwise covered
by specific instructions herein shall be submitted to an appropriate officer of
the Company and handled in accordance with his or her instructions. Such
instructions will be documented by the Agent indicating the instructing officer
and the date thereof.
6. Oversubscription. If, after allocation of shares of Common Stock to
Shareholders, there remain unexercised Rights, then the Agent shall allot the
shares issuable upon exercise of such unexercised Rights (the "Remaining
Shares") to shareholders who have exercised all the Rights initially issued to
them and who wish to acquire more than the number of shares for which the
Rights issued to them are exercisable. Shares subscribed for pursuant to the
Oversubscription Privilege will be allocated in the amounts of such
oversubscriptions if remaining sufficient shares are available. If the number
of shares for which the Oversubscription Privilege has been exercised is
greater than the Remaining Shares, the Agent shall allocate the Remaining
Shares to Shareholders exercising Oversubscription Privileges based on the
number of shares of Common Stock owned by them on the Record Date. Any
remaining shares to be issued shall be allocated to Xxxxxxx, Dubilier & Rice
Fund VI Limited Partnership (the "Standby Purchaser"). The percentage of
Remaining Shares each over-subscribing Shareholder may acquire will be rounded
up or down to result in delivery of whole shares of Common Stock. The Agent
shall advise the Company immediately upon the completion of the allocation set
forth above as to the total number of shares subscribed and distributable.
7. Delivery of Certificates. The Agent will deliver (i) certificates
representing those shares of Common Stock validly purchased pursuant to
exercise of Basic Subscription Privileges as soon as practicable after the
Expiration Date and (ii) certificates representing those shares purchased
pursuant to the exercise of the Oversubscription Privilege as soon as
practicable after the Expiration Date and after all allocations under the Basic
Subscription Privileges have been effected.
8. Holding Proceeds of Rights Offering in Escrow.
(a) All proceeds received by the Agent from Shareholders in respect of the
exercise of Rights shall be held by the Agent, on behalf of the Company, in a
segregated account (the "Account"). No interest shall accrue to the Company or
Shareholders on funds held in the Account pending disbursement in the manner
described in Section 4(d) above.
(b) The Agent shall deliver all proceeds received in respect of the exercise
of Rights to the Company as promptly as practicable, but in no event later than
ten business days after the Expiration Date.
9. Reports.
(a) Daily, during the period commencing on a date to be provided by the
Company, until termination of the Subscription Period, the Agent will report by
telephone or telecopier, confirmed by letter, to an Officer of the Company,
data regarding Rights exercised, the total number of shares of Common Stock
subscribed for, and payments received therefor, bringing forward the figures
from the previous day's report in each case so as to show the cumulative totals
and any such other information as may be mutually determined by the Company and
the Agent.
10. Loss or Mutilation. If any Subscription Certificate is lost, stolen,
mutilated or destroyed, the Agent may, on such terms which will indemnify and
protect the Company and the Agent as the Agent may in its discretion impose
(which shall, in the case of a mutilated Subscription Certificate include the
surrender and cancellation thereof), issue a new Subscription Certificate of
like denomination in substitution for the Subscription Certificate so lost,
stolen, mutilated or destroyed.
11. Compensation for Services. The Company agrees to pay to the Agent
compensation for its services as such in accordance with its Fee Schedule to
act as Agent, dated and set forth hereto as Exhibit A. The
Company further agrees that it will reimburse the Agent for its reasonable out-
of-pocket expenses incurred in the performance of its duties as such.
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12. Instructions and Indemnification. The Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions:
(a) The Agent shall be entitled to rely upon any instructions or
directions furnished to it by an appropriate officer of the Company,
whether in conformity with the provisions of this Agreement or constituting
a modification hereof or a supplement hereto. Without limiting the
generality of the foregoing or any other provision of this Agreement, the
Agent, in connection with its duties hereunder, shall not be under any duty
or obligation to inquire into the validity or invalidity or authority or
lack thereof of any instruction or direction from an officer of the Company
which conforms to the applicable requirements of this Agreement and which
the Agent reasonably believes to be genuine and shall not be liable for any
delays, errors or loss of data occurring by reason of circumstances beyond
the Agent's control.
(b) The Company will indemnify the Agent and its nominees against, and
hold it harmless from, all liability and expense which may arise out of or
in connection with the services described in this Agreement or the
instructions or directions furnished to the Agent relating to this
Agreement by an appropriate officer of the Company, except for any
liability or expense which shall arise out of the negligence, bad faith or
willful misconduct of the Agent or such nominees.
13. Changes in Subscription Certificate. The Agent may, without the consent
or concurrence of the Shareholders in whose names Subscription Certificates are
registered, by supplemental agreement or otherwise, concur with the Company in
making any changes or corrections in a Subscription Certificate that it shall
have been advised by counsel (who may be counsel for the Company) is
appropriate to cure any ambiguity or to correct any defective or inconsistent
provision or clerical omission or mistake or manifest error therein or herein
contained, and which shall not be inconsistent with the provision of the
Subscription Certificate except insofar as any such change may confer
additional rights upon the Shareholders.
14. Assignment, Delegation.
(a) Neither this Agreement nor any rights or obligations hereunder may be
assigned or delegated by either party without the written consent of the other
party.
(b) This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns. Nothing in this
Agreement is intended or shall be construed to confer upon any other person any
right, remedy or claim or to impose upon any other person any duty, liability
or obligation.
(c) The Agent may, without further consent on the part of the Company, (i)
subcontract for the performance hereof with EquiServe Limited Partnership or
(ii) subcontract with other subcontractors for systems, processing, and
telephone and mailing services as may be required from time to time; provided,
however, that the Agent shall be as fully responsible to the Company for the
acts and omissions of any subcontractor as it is for its own acts and
omissions.
15. Governing Law. The validity, interpretation and performance of this
Agreement shall be governed by the law of the Commonwealth of Massachusetts.
16. Third Party Beneficiaries. This Agreement does not constitute an
agreement for a partnership or joint venture between the Agent and the Company.
Neither Party shall make any commitments with third parties that are binding on
the other party without the other party's prior written consent.
17. Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other cause reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform or
otherwise from such causes. Performance under this Agreement shall resume when
the affected party or parties are able to perform substantially that party's
duties.
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18. Consequential Damages. Neither party to this Agreement shall be liable
to the other party for any consequential, indirect, special or incidental
damages under any provisions of this Agreement or for any consequential,
indirect, special or incidental damages arising out of any act or failure to
act hereunder even if that party has been advised of or has foreseen the
possibility of such damages.
19. Severability. If any provision of this Agreement shall be held invalid,
unlawful, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
21. Captions. The captions and descriptive headings herein are for the
convenience of the parties only. They do not in any way modify, amplify, alter
or give full notice of the provisions hereof.
22. Facsimile Signatures. Any facsimile signature of any party hereto shall
constitute a legal, valid and binding execution hereof by such party.
23. Confidentiality. The Agent and the Company agree that all books,
records, information and data pertaining to the business of the other party
which are exchanged or received pursuant to the negotiation or the carrying out
of this Agreement including the fees for services set forth in the attached
schedule shall remain confidential, and shall not be voluntarily disclosed to
any other person, except as may be required by law.
24. Term. This agreement shall remain in effect until termination upon the
date of completion of the Offering (the "Termination Date") or, prior to the
Termination Date, upon 30 days' written notice by either party to the other.
Upon termination of the Agreement, the Agent shall retain all canceled
Certificates and related documentation as required by applicable law.
25. Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers, hereunto duly authorized, as of the day
and year first above written.
EquiServe Trust Company, N.A. Dynatech Corporation
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Signature Signature
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Title Title
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Date Date
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