-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WarFQ5+ryrWnote9wWxqHPPcwOL6K56Kz8XVCSy3Li+4cKP1jmzH9zn9mcBcbTB+ lFyTkJpSsqkwRLkhBA+dXQ== 0000927016-99-000268.txt : 19990204 0000927016-99-000268.hdr.sgml : 19990204 ACCESSION NUMBER: 0000927016-99-000268 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19981231 FILED AS OF DATE: 19990203 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DYNATECH CORP CENTRAL INDEX KEY: 0000030841 STANDARD INDUSTRIAL CLASSIFICATION: INSTRUMENTS FOR MEAS & TESTING OF ELECTRICITY & ELEC SIGNALS [3825] IRS NUMBER: 042258582 STATE OF INCORPORATION: MA FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 001-12657 FILM NUMBER: 99519825 BUSINESS ADDRESS: STREET 1: 3 NEW ENGLAND EXECUTIVE PARK CITY: BURLINGTON STATE: MA ZIP: 01803-5087 BUSINESS PHONE: 6172726100 MAIL ADDRESS: STREET 1: 3 NEW ENGLAND EXECUTIVE PARK CITY: BURLINGTON STATE: MA ZIP: 01803-5087 10-Q 1 FORM 10-Q - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- Form 10-Q QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended December 31, 1998 Commission file number 1-12657 ---------------- DYNATECH CORPORATION (Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2258582 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number)
3 New England Executive Park Burlington, Massachusetts 01803-5087 (Address of principal executive offices)(Zip code) Registrant's telephone number, including area code: (781) 272-6100 ---------------- Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [_] At January 15, 1999 there were 120,659,076 shares of common stock of the registrant outstanding. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART I. Financial Information Item 1. Financial Statements DYNATECH CORPORATION CONSOLIDATED STATEMENTS OF OPERATIONS (In thousands except per share data) (Unaudited)
Three Months Nine Months Ended Ended December 31 December 31 ------------------ ------------------ 1998 1997 1998 1997 -------- -------- -------- -------- Sales................................. $136,781 $133,138 $369,525 $353,314 Cost of sales......................... 60,050 58,265 158,868 151,714 -------- -------- -------- -------- Gross profit.......................... 76,731 74,873 210,657 201,600 Selling, general & administrative expense.............................. 36,331 38,512 107,517 103,549 Product development expense........... 13,239 14,484 40,306 41,563 Recapitalization-related costs........ -- -- 43,386 -- Amortization of intangibles........... 1,625 1,445 4,697 4,327 Amortization of unearned compensation......................... 574 -- 977 -- -------- -------- -------- -------- Total operating expenses.......... 51,769 54,441 196,883 149,439 -------- -------- -------- -------- Operating income...................... 24,962 20,432 13,774 52,161 Interest expense...................... (13,125) (164) (33,106) (945) Interest income....................... 782 886 2,870 2,250 Gain on sale of subsidiary............ -- -- 15,900 -- Other income (expense)................ (208) 244 (275) 694 -------- -------- -------- -------- Income (loss) before income taxes..... 12,411 21,398 (837) 54,160 Income tax provision.................. 5,462 8,663 486 21,933 -------- -------- -------- -------- Net income (loss)..................... $ 6,949 $ 12,735 $ (1,323) $ 32,227 ======== ======== ======== ======== Income (loss) per common share: Basic............................... $ 0.06 $ 0.76 $ (0.01) $ 1.92 Diluted............................. $ 0.05 $ 0.73 $ (0.01) $ 1.85 ======== ======== ======== ======== Weighted average number of common shares: Basic............................... 120,313 16,817 101,480 16,826 Diluted............................. 127,657 17,395 101,480 17,413 ======== ======== ======== ========
See notes to condensed consolidated financial statements. 2 DYNATECH CORPORATION CONDENSED CONSOLIDATED BALANCE SHEETS (In thousands)
December 31 March 31 1998 1998 ----------- -------- (Unaudited) ASSETS Current assets: Cash and cash equivalents.............................. $ 36,499 $ 64,904 Accounts receivable, net............................... 89,762 69,988 Inventories: Raw materials......................................... 19,497 24,263 Work in process....................................... 13,961 11,769 Finished goods........................................ 9,107 12,850 --------- -------- Total inventory...................................... 42,565 48,882 Other current assets................................... 14,634 16,823 --------- -------- Total current assets................................. 183,460 200,597 Property and equipment, net.............................. 24,615 26,365 Intangible assets, net................................... 53,392 39,595 Other assets............................................. 53,909 21,573 --------- -------- $ 315,376 $288,130 ========= ======== LIABILITIES & EQUITY (DEFICIT) Current Liabilities: Current portion of long-term debt...................... $ 8,235 $ 150 Accounts payable....................................... 22,185 22,933 Accrued expenses: Compensation and benefits............................. 21,330 21,750 Deferred revenue...................................... 22,953 13,868 Other accrued expenses................................ 33,369 24,105 --------- -------- Total current liabilities............................ 108,072 82,806 Long-term debt........................................... 528,169 83 Deferred compensation.................................... 4,376 3,122 Shareholders' Equity (Deficit): Common stock........................................... -- 3,721 Additional paid-in capital............................. 322,582 7,647 Retained earnings (deficit)............................ (637,709) 237,282 Unearned compensation.................................. (8,582) -- Cumulative other comprehensive loss.................... (1,532) (1,600) Treasury stock......................................... -- (44,931) --------- -------- Total shareholders' equity (deficit)................. (325,241) 202,119 --------- -------- $ 315,376 $288,130 ========= ========
See notes to condensed consolidated financial statements. 3 DYNATECH CORPORATION CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (In thousands) (Unaudited)
Nine Months Ended December 31, ------------------ 1998 1997 -------- -------- Operating activities: Net income (loss)........................................ $ (1,323) $ 32,227 Adjustments to net income (loss): Depreciation............................................ 8,874 8,926 Amortization of intangibles............................. 4,697 4,327 Gain on sale of subsidiary.............................. (15,900) -- Recapitalization-related costs.......................... 14,640 -- Amortization of unearned compensation................... 977 -- Amortization of deferred debt issuance costs............ 1,716 -- Other................................................... 75 192 Change in deferred income tax asset...................... (5,757) (36) Change in operating assets and liabilities............... 8,591 (8,155) -------- -------- Net cash flows provided by continuing operations......... 16,590 37,481 Net cash flows used in discontinued operations........... (200) (12,680) -------- -------- Net cash flows provided by operating activities............ 16,390 24,801 Investing activities: Purchases of property and equipment...................... (7,425) (11,026) Proceeds from disposals of property and equipment........ 246 Proceeds from sale of business........................... 21,000 -- Business acquired in purchase transaction, net of cash acquired................................................ (19,615) -- Other.................................................... (5,043) 85 -------- -------- Net cash flows used in continuing operations............. (10,837) (10,941) Net cash flows provided by discontinued operations....... -- 507 -------- -------- Net cash flows used in investing activities................ (10,837) (10,434) Financing activities: Net borrowings (repayments) of debt...................... 536,000 (5,000) Repayment of notes payable............................... (2,156) -- Repayment of capital lease obligations................... (132) -- Financing fees........................................... (39,608) -- Proceeds from issuance of stock.......................... 277,000 -- Proceeds from exercise of stock options.................. 1,800 4,332 Purchases of treasury stock and stock outstanding........ (806,508) (5,330) -------- -------- Net cash flows used in financing activities................ (33,604) (5,998) Effect of exchange rate on cash............................ (354) (582) -------- -------- Increase (decrease) in cash and cash equivalents........... (28,405) 7,787 Cash and cash equivalents at beginning of year............. 64,904 39,782 -------- -------- Cash and cash equivalents at end of period................. $ 36,499 $ 47,569 ======== ========
See notes to condensed consolidated financial statements. 4 NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (IN THOUSANDS) A. Condensed Consolidated Financial Statements In the opinion of management, the unaudited condensed consolidated balance sheet at December 31, 1998, and the unaudited consolidated statements of operations and unaudited consolidated condensed statements of cash flows for the interim periods ended December 31, 1998 and 1997 include all adjustments (consisting only of normal recurring adjustments) necessary to present fairly these financial statements. Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted. The year-end balance sheet data was derived from audited financial statements, but does not include disclosures required by generally accepted accounting principles. It is suggested that these condensed statements be read in conjunction with the Company's most recent Form 10-K as of March 31, 1998. The preparation of financial statements in conformity with generally accepted accounting principles requires management to make certain estimates and assumptions that affect the reported amount of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reported period. Significant estimates in these financial statements include allowances for accounts receivable, net realizable value of inventories, and tax valuation reserves. Actual results could differ from those estimates. B. Merger/Recapitalization On May 21, 1998 the Company completed its management-led merger with a Company formed at the direction of Clayton, Dubilier & Rice, Inc. ("CDR") (the "Merger"). The Merger and related transactions were treated as a recapitalization (the "Recapitalization") for financial reporting purposes. Accordingly, the historical basis of the Company's assets and liabilities was not affected by these transactions. C. Related Party The Company will pay an annual management fee of $0.5 million to CDR. In return for the annual management fee, CDR will provide management and financial consulting services to the Company and its subsidiaries. D. Financial Position of Dynatech Corporation and Dynatech LLC In connection with the Merger and related transactions, Dynatech LLC (formerly known as Telecommunications Techniques Co., LLC), Dynatech Corporation's wholly owned subsidiary ("Dynatech LLC"), became the primary obligor (and Dynatech Corporation, a guarantor) with respect to indebtedness of Dynatech Corporation, including the 9 3/4% Senior Subordinated Notes due 2008 (the "Senior Subordinated Notes") and the Senior Secured Credit Facilities referred to elsewhere in this report. Dynatech Corporation has fully and unconditionally guaranteed the Senior Subordinated Notes. Dynatech Corporation, however, is a holding company with no independent operations and no significant assets other than its membership interest in Dynatech LLC. See Note M. Debt. Accordingly, the condensed consolidated financial statements of Dynatech Corporation, presented in this report, are not materially different from those of Dynatech LLC. Management has not included separate financial statements of Dynatech LLC because management has determined that they would not be material to holders of the Senior Subordinated Notes or to the holders of Dynatech Corporation's common stock. Dynatech LLC is subject, under agreements governing its indebtedness, to prohibitions on its ability to make distributions to Dynatech Corporation (with limited exceptions) and other significant restrictions on its operations. See Note M. Debt. 5 E. Acquisition On June 19, 1998, the Company, through one of its indirect, wholly owned subsidiaries, acquired all of the outstanding capital stock of Pacific Systems Corporation of Kirkland, Washington ("Pacific") for a total purchase price of $20 million, including an incentive earnout. The acquisition was accounted for using the purchase method of accounting, and resulted in approximately $18 million of goodwill. The pro forma effects related to the acquisition are not material to the consolidated financial statements of the Company and are, therefore, not presented. F. Divestiture On June 30, 1998 the Company sold the assets of ComCoTec, Inc. ("ComCoTec") located in Lombard, Illinois to The Potomac Group, Inc. for $21 million. ComCoTec is a supplier of pharmacy management software and services and was a subsidiary within the Company's visual communications products group. G. Litigation On June 27, 1996, Cincinnati Microwave, Inc. ("CMI") filed an action in the United States District Court for the Southern District of Ohio against the Company and Whistler Corporation of Massachusetts ("Whistler"), alleging willful infringement of CMI's patent for a mute function in radar detectors. In 1994, the Company sold its radar detector business to Whistler. The Company and Whistler have asserted in response that they have not infringed, and that the patent is invalid and unenforceable. The Company obtained an opinion of counsel from Bromberg & Sunstein LLP in connection with the manufacture and sale of the Company's Whistler series radar detectors and will be offering the opinion, among other things, as evidence that any alleged infringement was not willful. Litigation is on-going. The Company intends to defend the lawsuit vigorously and does not believe that the outcome of the litigation is likely to have a material adverse effect on the Company's financial condition, results of operations or liquidity. H. New Pronouncements In the quarter ended June 30,1998, the Company adopted Statement of Financial Accounting Standards No. 130 ("SFAS 130") "Reporting Comprehensive Income." SFAS 130 establishes standards for the reporting and display of comprehensive income and its components. SFAS 130 requires, among other things, foreign currency translation adjustments, which prior to adoption were reported separately in stockholders' equity to be included in other comprehensive income. In the quarter ended June 30,1998, the Company adopted Statement of Position 97-2, "Software Revenue Recognition" ("SOP 97-2"). SOP 97-2 provides guidance on applying generally accepted accounting principles in recognizing revenue on software transactions. In June, 1997, the Financial Accounting Standards Board issued Statement No. 131 ("SFAS 131"), "Disclosures about Segments of an Enterprise and Related Information," which establishes standards for the reporting of operating segments in the financial statements. The Company is required to adopt SFAS 131 in the fourth quarter of fiscal 1999 and its adoption may result in the provision of additional details in the Company's disclosures. On June 15, 1998, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 133 ("SFAS 133"), "Accounting for Derivative Instruments and Hedging Activities." SFAS 133 is effective for all fiscal quarters of all fiscal years beginning after June 15, 1999. SFAS 133 requires that all derivative instruments be recorded on the balance sheet at their fair value. Changes in the fair value of derivatives are recorded each period in current earnings or other comprehensive income, depending on whether a derivative is designated as part of a hedge transaction and, if it is, the type of hedge transaction. Due to its limited use of derivative instruments, the Company is assessing the impact of the adoption of SFAS 133 on its results of operations and its financial position. 6 I. Comprehensive Income (Loss) The following table shows adjustments to net income (loss) for other comprehensive income (loss) (consisting primarily of foreign currency translation adjustments).
Three Months Nine Months Ended Ended December 31 December 31 ------------------ ------------------ 1998 1997 1998 1997 -------- --------- -------- -------- Net income (loss)....................... $ 6,949 $ 12,735 $ (1,323) $ 32,227 Other comprehensive income (loss)....... 257 169 68 (691) -------- --------- -------- -------- Comprehensive income (loss)............. $ 7,206 $ 12,904 $ (1,255) $ 31,536 ======== ========= ======== ========
J. Income (loss) per share Effective as of December 31, 1997, the Company adopted Statement of Financial Accounting Standards No. 128, "Earnings per Share," which modifies the calculation of earnings per share ("EPS"). The Standard replaces the previous presentation of primary and fully diluted EPS to basic and diluted EPS. Basic EPS excludes dilution and is computed by dividing income available to common stockholders by the weighted average number of common shares outstanding for the period. Diluted EPS includes the dilution of common stock equivalents, and is computed similarly to fully diluted EPS pursuant to APB Opinion 15.
Three Months Ended Nine Months Ended December 31 December 31 ------------------- ------------------- 1998 1997 1998 1997 --------- --------- --------- -------- (In thousands except per share data) Net income (loss).................... $ 6,949 $ 12,735 $ (1,323) $ 32,227 ========= ========= ========= ======== BASIC: Common stock outstanding, net of treasury stock, beginning of period.............................. 120,251 16,757 16,864 16,803 Weighted average common stock and treasury stock issued during the period.............................. 62 60 98,788 103 Weighted average common stock and treasury stock repurchased.......... -- -- (14,172) (80) --------- --------- --------- -------- Weighted average common stock outstanding, net of treasury stock, end of period....................... 120,313 16,817 101,480 16,826 ========= ========= ========= ======== Income (loss) per common share....... $ 0.06 $ 0.76 $ (0.01) $ 1.92 ========= ========= ========= ======== DILUTED: Common stock outstanding, net of treasury stock, beginning of period.............................. 120,251 16,757 16,864 16,803 Weighted average common stock and treasury stock issued during the period.............................. 62 60 98,788 103 Weighted average common stock equivalents (a)..................... 7,344 578 -- 587 Weighted average common stock and treasury stock repurchased.......... -- -- (14,172) (80) --------- --------- --------- -------- Weighted average common stock outstanding, net of treasury stock, end of period....................... 127,657 17,395 101,480 17,413 ========= ========= ========= ======== Income (loss) per common share....... $ 0.05 $ 0.73 $ (0.01) $ 1.85 ========= ========= ========= ========
- -------- (a) As of December 31, 1998, the Company had options outstanding to purchase 33.3 million shares of common stock that were excluded from the diluted earnings per share computation for the nine months ended December 31, 1998 as the effect of their inclusion would have been antidilutive with respect to losses per share. 7 The income (loss) per share and weighted average common shares outstanding for the periods ending December 31, 1998 are based on the Company's recapitalized structure. The income per share for the periods ending December 31, 1997 is based on the Company's capital structure at that time (prior to the Merger). K. Intangible Assets Intangible assets acquired primarily from business acquisitions are summarized as follows:
December 31, March 31, 1998 1998 ------------ --------- Product technology................................. $17,042 $17,042 Excess of cost over net assets acquired............ 50,972 32,478 Other intangible assets............................ 13,307 13,307 ------- ------- 81,321 62,827 Less accumulated amortization...................... 27,929 23,232 ------- ------- Total............................................ $53,392 $39,595 ======= =======
L. Other Assets In connection with the Merger, the Company incurred financing fees which will be amortized over the life of the Senior Secured Credit Facilities and Senior Subordinated Notes. See Note M. Debt. In addition, the deferred tax asset increased primarily as a result of certain compensation charges relating to stock option cancellation payments in connection with the Merger. The detail of Other Assets is as follows:
December 31, March 31, 1998 1998 ------------ --------- Deferred financing fees........................... $25,591 $ -- Deferred tax asset................................ 22,809 17,084 Other assets...................................... 5,509 4,489 ------- ------- Total other assets.............................. $53,909 $21,573 ======= =======
M. Debt Long-term debt is summarized below:
December 31, March 31, 1998 1998 ------------ --------- Senior secured credit facilities................... $261,000 $-- Senior subordinated notes.......................... 275,000 -- Capitalized leases................................. 404 233 -------- ---- Total debt....................................... 536,404 233 Less current portion........................... 8,235 150 -------- ---- Long-term debt..................................... $528,169 $ 83 ======== ====
In connection with the Merger, the Company entered into a senior secured credit agreement (the "Senior Secured Credit Agreement") consisting of a $260 million term loan facility (the "Term Loan Facility") and a $110 million revolving credit facility (the "Revolving Credit Facility") (collectively, the "Senior Secured Credit Facilities"). In addition, the Company incurred $275 million of debt through the sale of its 9 3/4% Senior Subordinated Notes (the "Senior Subordinated Notes"). 8 In connection with the Merger and related transactions, Dynatech LLC became the primary obligor with respect to the Senior Secured Credit Facility and the Senior Subordinated Notes. See Note D. Financial Position of Dynatech Corporation and Dynatech LLC. Dynatech Corporation has guaranteed the Senior Secured Credit Facilities and the Senior Subordinated Notes. Principal and interest payments under the new Senior Secured Credit Agreement and interest payments on the Senior Subordinated Notes represent significant liquidity requirements for the Company. During fiscal 1999 the Company is required to make mandatory principal payments of $8 million of which $6 million was repaid during the first nine months of fiscal 1999. With respect to the $260 million initially borrowed under the Term Loan Facility (which is divided into four tranches, each of which has a different term and repayment schedule), the Company is required to make scheduled principal payments of the $50 million of tranche A term loan thereunder during its six-year term, with substantial amortization of the $70 million tranche B term loan, $70 million tranche C term loan and $70 million tranche D term loan thereunder occurring after six, seven and eight years, respectively. The $275 million of Senior Subordinated Notes will mature in 2008, and bear interest at 9 3/4% per annum. Total interest expense including the amortization of deferred debt issuance costs is expected to be approximately $47 million in fiscal 1999. The Senior Secured Credit Facilities are also subject to mandatory prepayment and reduction in an amount equal to, subject to certain exceptions, (a) 100% of the net proceeds of (i) certain debt offerings by the Company and any of its subsidiaries, (ii) certain asset sales by the Company or any of its subsidiaries, and (iii) casualty insurance, condemnation awards or other recoveries received by the Company or any of its subsidiaries, and (b) 50% of the Company's excess cash flow (as defined in the Senior Secured Credit Agreement) for each fiscal year in which the Company exceeds a certain leverage ratio. The Senior Subordinated Notes are subject to certain mandatory prepayments under certain circumstances. The Revolving Credit Facility matures in 2004, with all amounts then outstanding becoming due. The Company expects that its working capital needs will require it to obtain new revolving credit facilities at the time that the Revolving Credit Facility matures, by extending, renewing, replacing or otherwise refinancing the Revolving Credit Facility. No assurance can be given that any such extension, renewal, replacement or refinancing can be successfully accomplished or accomplished on acceptable terms. The loans under the Senior Secured Credit Agreement bear interest at floating rates based upon the interest rate option elected by the Company. The Company's weighted-average interest rate on the loans under the Senior Credit Agreement was 8.5% per annum for the period commencing May 21, 1998 and ending December 31, 1998, and is expected to be approximately 8.3% per annum for the period commencing January 1, 1999 and ending March 31, 1999. However, the Company has entered into interest rate swaps which will be effective for periods ranging from two to three years beginning September 30, 1998 to fix the interest charged on a portion of the total debt outstanding under the Term Loan Facility. After giving effects to these arrangements, approximately $220 million of the debt outstanding will be subject to an effective average annual fixed rate of 5.71% plus an applicable margin. See Note N. Interest Rate Swaps. As a result of the substantial indebtedness incurred in connection with the Merger, it is expected that the Company's interest expense will be higher and will have a greater proportionate impact on net income in comparison to preceding periods. Future Financing Sources and Cash Flows. The amount under the Revolving Credit Facility that remained undrawn following the May, 1998 closing of the Recapitalization was $70 million. The undrawn portion of this facility will be available to meet future working capital and other business needs of the Company. At December 31, 1998, the undrawn portion of this facility was $103 million. The Company believes that cash generated from operations, together with amounts available under the Revolving Credit Facility and any other available sources of liquidity, will be adequate to permit the Company to meet its debt service obligations, capital expenditure program requirements, ongoing operating costs and working capital needs, although no assurance can be given in this regard. The Company's future operating performance and ability to service or refinance the Senior Subordinated Notes and to repay, extend or refinance the Senior 9 Secured Credit Facilities (including the Revolving Credit Facility) will be, among other things, subject to future economic conditions and to financial, business and other factors, many of which are beyond the Company's control. Covenant Restrictions. The Senior Secured Credit Agreement imposes restrictions on the ability of the Company to make capital expenditures, and both the Senior Secured Credit Facilities and the indenture governing the Senior Subordinated Notes limit the Company's ability to incur additional indebtedness. Such restrictions, together with the highly leveraged nature of the Company, could limit the Company's ability to respond to market conditions, to meet its capital-spending program, to provide for unanticipated capital investments, or to take advantage of business opportunities. The covenants contained in the Senior Secured Credit Agreement also, among other things, restrict the ability of the Company and its subsidiaries to dispose of assets, incur guarantee obligations, prepay other indebtedness, make restricted payments, create liens, make equity or debt investments, make acquisitions, modify terms of the indenture governing the Senior Subordinated Notes, engage in mergers or consolidations, change the business conducted by the Company and its subsidiaries taken as a whole or engage in certain transactions with affiliates. These restrictions, among other things, preclude Dynatech LLC from distributing assets to Dynatech Corporation (which has no independent operations and no significant assets other than its membership interest in Dynatech LLC), except in limited circumstances. In addition, under the Senior Secured Credit Agreement, the Company is required to comply with a minimum interest expense coverage ratio and a maximum leverage ratio. These financial tests become more restrictive in future years. The term loans under the Senior Secured Credit Facilities (other than the $50 million tranche A term loan) are governed by negative covenants that are substantially similar to the negative covenants contained in the indenture governing the Senior Subordinated Notes, which also impose restrictions on the operation of the Company's business. N. Interest Rate Swaps The Company uses interest rate swap agreements to effectively fix a portion of its variable rate Term Loan Facility to a fixed rate in order to reduce the impact of interest rate changes on future income. The differential to be paid or received under these agreements will be recognized as an adjustment to interest expense related to the debt. At December 31, 1998 the Company had four interest rate swap agreements (three of which commenced September 30, 1998 and will end September 30, 2001) (with notional amounts totaling $195 million) under which the Company will pay fixed rates of 5.85%, 5.845% and 5.8375%, respectively, and will receive three-month LIBOR. The fourth interest rate swap agreement commenced on October 16, 1998 and will end October 16, 2000 for a notional amount of $25 million. The Company will pay a fixed rate of 4.715% and will receive three-month LIBOR. O. Unearned Compensation On July 15, 1998, the Company granted non-qualified options to certain key employees to purchase 14.3 million shares of common stock at an exercise price lower than fair market value. The Company has historically granted options at a price equal to the closing market price on the date of the grant. Unearned compensation related to these options of $9.7 million was recorded within shareholders' equity (deficit) and will be charged to expense over a five-year vesting period. As of December 31, 1998, the unamortized portion of the total compensation expense was $8.6 million. 10 P. Shareholders' Equity (Deficit) The following is a summary of changes in shareholders' equity (deficit) for the period ended December 31, 1998.
Number of Shares Cumulative Total ----------------- Additional Retained Other Shareholders' Common Treasury Common Paid-In Earnings Unearned Comprehensive Treasury Equity Stock Stock Stock Capital (Deficit) Compensation Loss Stock (Deficit) ------- -------- ------ ---------- --------- ------------ ------------- -------- ------------- Balance at 3/31/98.. 18,605 (1,741) $3,721 $ 7,647 $ 237,282 $(1,600) $(44,931) $ 202,119 Net loss........... (1,323) (1,323) Translation adjustments....... 68 68 Exercise of stock options and other issuances......... 408 59 (143) 1,946 1,803 Recapitalization- related costs: Common stock repurchased....... (18,605) 1,682 (3,721) (7,269) (873,668) 42,985 (841,673) Issuance of new stock, net of fees.............. 120,251 298,148 298,148 Stock option expense........... 14,640 14,640 Unearned compensation...... 9,559 $(9,559) -- Amortization of unearned compensation...... 977 977 ------- ------ ------ -------- --------- ------- ------- -------- --------- Balance at 12/31/98........... 120,659 0 $ 0 $322,582 $(637,709) $(8,582) $(1,532) $ 0 $(325,241) ======= ====== ====== ======== ========= ======= ======= ======== =========
11 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations This Form 10-Q contains forward-looking statements which involve risks and uncertainties. The Company's actual results may differ significantly from the results discussed in the forward-looking statements. Factors that might cause such a difference include, but are not limited to, product demand and market acceptance risks, the effect of economic conditions, the impact of competitive products and pricing, product development, commercialization and technological difficulties, capacity and supply constraints or difficulties, availability of capital resources, general business and economic conditions, the effect of the Company's accounting policies, and other risks detailed in the Company's most recent Form 10-K as of March 31, 1998. Overview The Merger. On May 21, 1998 the Company was merged with CDRD Merger Corporation ("MergerCo"), a nonsubstantive transitory merger vehicle organized at the direction of Clayton, Dubilier & Rice, Inc. ("CDR"), a private investment firm, with the Company continuing as the surviving corporation (the "Merger"). The Merger and related transactions were treated as a recapitalization (the "Recapitalization") for financial reporting purposes. Accordingly, the historical basis of the Company's assets and liabilities was not affected by these transactions. In the Merger, (i) each then outstanding share of common stock, par value $0.20 per share, of the Company (the "Common Stock") was converted into the right to receive $47.75 in cash and 0.5 shares of common stock, no par value, of the Company (the "Recapitalized Common Stock") and (ii) each then outstanding share of common stock of MergerCo was converted into one share of Recapitalized Common Stock. As a result of the Merger, Clayton, Dubilier & Rice Fund V Limited Partnership, an investment partnership managed by CDR ("CDR Fund V"), holds approximately 92.3% of the Recapitalized Common Stock. John F. Reno, the Chairman, President and Chief Executive Officer of the Company, together with two family trusts, holds approximately 0.7% of the Recapitalized Common Stock and other stockholders hold approximately 7.0% of the Recapitalized Common Stock. In connection with the Merger and related transactions, Dynatech LLC (formerly known as Telecommunications Techniques Co., LLC), Dynatech Corporation's wholly owned subsidiary ("Dynatech LLC"), became the primary obligor (and Dynatech Corporation, a guarantor) with respect to indebtedness of Dynatech Corporation, including the 9 3/4% Senior Subordinated Notes due 2008 (the "Senior Subordinated Notes") and the Senior Secured Credit Facilities referred to elsewhere in this report. Dynatech Corporation has fully and unconditionally guaranteed the Senior Subordinated Notes. Dynatech Corporation, however, is a holding company with no independent operations and no significant assets other than its membership interest in Dynatech LLC. See "Capital Resources and Liquidity." Accordingly, the condensed consolidated financial statements of Dynatech Corporation, presented in this report, are not materially different from those of Dynatech LLC. Management has not included separate financial statements of Dynatech LLC because management has determined that they would not be material to holders of the Senior Subordinated Notes or to the holders of Dynatech Corporation's common stock. Dynatech LLC is subject, under the agreements governing its indebtedness, to prohibitions on its ability to make distributions to Dynatech Corporation (with limited exceptions) and other significant restrictions on its operations. See "Capital Resources and Liquidity." Acquisition. On June 19, 1998 the Company, through one of its indirect wholly owned subsidiaries, acquired all of the outstanding capital stock of Pacific Systems Corporation of Kirkland, Washington ("Pacific") for a total purchase price of $20 million, including an incentive earnout, which resulted in approximately $18 million of goodwill. The acquisition was accounted for using the purchase method of accounting. Pacific designs and manufactures customer-specified avionics and integrated cabin management equipment for the corporate and general aviation market. 12 Divestiture. On June 30, 1998 the Company sold the assets of ComCoTec, Inc. ("ComCoTec") located in Lombard, Illinois to The Potomac Group, Inc. for $21 million. ComCoTec is a supplier of pharmacy management software and services and was a subsidiary within the Company's visual communications products group. Current Trends Growth rates of enterprises engaged in the manufacture and provision of telecommunications equipment and services will likely be affected by the current trend of consolidation among such enterprises. In addition, particularly in the near term, recent capital market volatility and reduced financing availability may affect growth rates for certain customers, particularly those that may be highly leveraged with significant capital requirements and those that are located in emerging markets, as well as growth of the economy in general. Any resulting slowdown in such growth could result in delays or reductions of orders for the Company's products, and accordingly affect the Company's own growth. In the shorter term, the Company believes that such consolidation is being reflected in delays in orders for certain of the Company's test products as consolidating companies integrate or coordinate their purchasing practices. Conversely, the Company has experienced a recent influx of large orders from certain of the Regional Bell Operating Companies ("RBOCs") for the Company's ruggedized laptop computers. In the Company's largest business, communications test, sales have been relatively flat for the nine month period ended December 31, 1998 (a decrease of 1.4%), compared to the same period a year ago. The Company cannot predict whether growth will continue at historical rates in either its own business or in the markets in which it participates, due in part to recent global economic events. Itronix, as a manufacturer of ruggedized portable computing and communications hardware, generally has lower margins than the Company's other businesses. As a result, profitability of the Company's industrial computing and communications business is lower than the average profitability of the Company's other businesses. Itronix had been facing significant manufacturing and marketing challenges earlier in this fiscal year, as well as in fiscal 1998. The Company has taken several steps designed to improve the operating performance of Itronix, including programs designed to reduce costs and streamline manufacturing, as well as a change in Itronix senior management. During the third quarter Itronix received orders totaling more than $72 million, primarily from two RBOCs. As a result, Itronix's performance during the third quarter has significantly improved. However, results of operations for Itronix are expected to continue to vary widely because of the relatively small number of potential customers with large field-service work forces and the irregularity of the timing and size of such customers' orders. Growth at ICS in the near term is expected to lag behind historical growth rates. The Company is assessing the current market trend for these products. Results of Operations Three Months Ended December 31, 1998 as compared to Three Months Ended December 31, 1997. Sales. Consolidated sales increased $3.7 million or 2.7% to $136.8 million for the three months ended December 31, 1998 as compared to $133.1 million for the same period last year. Sales of communications test products decreased $3.9 million to $66.3 million or 5.5% for the three months ended December 31, 1998 as compared to $70.2 million for the same period last year. The Company has been experiencing a decrease in demand for its core instruments which has been partially offset by an increase in demand for its systems and services. 13 Sales for industrial computing and communications products increased $3.1 million to $46.6 million or 7.1% for the three months ended December 31, 1998 as compared to $43.5 million from the same period last year. During the quarter the Company shipped a higher number of ruggedized laptop computers as a result of the strong order rate and backlog position at Itronix. This higher shipping volume was offset by fewer shipments of its rack-mounted computers. Sales of visual communications products increased $4.4 million to $23.9 million or 22.9% for the three months ended December 31, 1998 as compared to $19.4 million from the same period last year. The increase was primarily attributable to the continued demand for the Company's real-time flight information passenger video displays. In addition, the Company also incurred additional sales from Pacific which were slightly offset by the reduction in sales from the divestiture of ComCoTec. Gross Profit. Consolidated gross profit increased $1.9 million to $76.7 million or 56.1% of consolidated sales for the three months ended December 31, 1998 as compared to $74.9 million or 56.2% of consolidated sales for the same period a year ago. The percentage decrease was attributable to a change in the product mix as the Company shipped more industrial computing and communications products during the quarter which are sold at lower gross margins. However, selling prices and costs of sales across the Company's product lines remained at levels similar to those during the same period last year. Operating Expenses. Operating expenses consist of selling, marketing and distribution expense; general and administrative expense; product development expense; amortization of intangibles; and amortization of unearned compensation. Total operating expenses were $51.8 million or 37.8% of consolidated sales as compared to $54.4 million or 40.9% of consolidated sales for the same period last year. The decrease in operating expenses during the quarter was primarily attributable to greater expense control throughout the corporation. Selling, general and administrative expense was $36.3 million or 26.6% of consolidated sales for the three months ended December 31, 1998, compared to $38.5 million or 28.9% of consolidated sales for the same period a year ago. The decrease was primarily attributable to cost containment programs as the Company continues to respond to the leveling of incoming orders for some of the Company's products. Product development expense was $13.2 million or 9.7% of consolidated sales for the three months ended December 31, 1998 as compared to $14.5 million or 10.9% of consolidated sales for the same period last year. The decrease was due primarily to the timing of expenses for ongoing research and development programs. Amortization of intangibles was $1.6 million or 1.2% of consolidated sales for the three months ended December 31, 1998 as compared to $1.4 million or 1.1% of consolidated sales for the same period last year. The increase was primarily attributable to increased goodwill amortization related to the acquisition of Pacific in June, 1998. Amortization of unearned compensation of $0.6 million relates to the amortization of the $9.7 million recorded within shareholders' equity related to the 14.3 million options that were issued in July, 1998 at a grant price lower than fair market value. Operating income. Operating income increased 22.2% to $25.0 million or 18.2% of consolidated sales for the three months ended December 31, 1998 as compared to $20.4 million or 15.3% of consolidated sales for the same period a year ago. The increase is primarily attributable to the increase in sales and the reduction in operating expenses. Interest. Interest expense, net of interest income, was $12.3 million for the third quarter of fiscal 1999 as compared to net interest income of $0.7 million for the same period last year. The increase in net interest expense was attributable to the debt incurred in connection with the Merger. Also included in interest expense is $0.8 million of amortization expense related to deferred debt issuance costs. 14 Income before income taxes. Income before income taxes for the three months of fiscal 1999 decreased 42% to $12.4 million, or 9% of consolidated sales as compared to $21.4 million or 16% of consolidated sales for the same period last year. The decrease was primarily attributable to an increase in interest expense incurred in connection with the Merger, offset by higher gross profit and lower operating expenses. Taxes. The effective tax rate for the third quarter of fiscal 1999 was 44.0%, compared to 40.5% for the same period a year ago. The increase is due to permanent differences arising as a result of the accounting for the Merger. Net income. Net income decreased $5.8 million to $6.9 million or $0.05 per share on a diluted basis for the three months ended December 31, 1998 as compared to $12.7 million or $0.73 per share on a diluted basis for the same period a year ago. The decrease was primarily attributable to the additional interest expense incurred in connection with the Merger which was offset by higher sales and lower operating expenses during the third quarter of fiscal 1999. The reduction in earnings per share is also attributable to a higher number of common shares outstanding in connection with the Merger. Nine Months Ended December 31, 1998 as compared to Nine Months Ended December 31, 1997 Sales. Consolidated sales increased $16.2 million or 4.6% to $369.5 million for the nine months ended December 31, 1998 as compared to $353.3 million for the same period last year. Sales of communications test products decreased $2.7 million to $182.2 million or 1.4% for the nine months ended December 31, 1998 as compared to $184.9 million from the same period last year. The decrease was primarily a result of the slowdown of orders from the RBOCs. Sales for industrial computing and communications products increased $8.7 million to $119.7 million or 7.8% for the nine months ended December 31, 1998 as compared to $111.0 million from the same period last year. The increase was attributable to increased sales for the Company's ruggedized laptops which was partially offset by a decrease in shipments of the Company's rack-mounted computers. Sales of visual communications products increased $10.2 million to $67.6 million or 17.7% for the nine months ended December 31, 1998 as compared to $57.5 million from the same period last year. The increase was primarily attributable to sales for the Company's real-time flight information passenger video displays, which continued to be strong, as well as increased sales from Pacific. Offsetting this increase were lower sales for graphical user-interface (GUI) products as well as a reduction in sales from the sale of ComCoTec. Gross Profit. Consolidated gross profit increased $9.1 million to $210.7 million or 57.0% of consolidated sales for the nine months ended December 31, 1998 as compared to $201.6 million or 57.1% of consolidated sales for the same period a year ago, due primarily to an increased volume of shipments of products. Operating Expenses. Operating expenses consist of selling, marketing and distribution expense; general and administrative expense; product development expense; recapitalization-related costs; amortization of intangibles; and amortization of unearned compensation. Total operating expenses were $196.9 million or 53.3% of consolidated sales for the nine months ended December 31, 1998 as compared to $149.4 million or 42.3% of consolidated sales for the same period last year. Included in the operating expenses for the nine months ended December 31, 1998 were $43.4 million of expenses related to the Recapitalization, primarily for the option cancellation payments. Excluding these Recapitalization-related expenses, operating expenses for the nine months ended December 31, 1998 were $153.5 million or 41.5% of consolidated sales. Selling, general and administrative expense was $107.5 million or 29.1% of consolidated sales for the nine months ended December 31, 1998, compared to $103.5 million or 29.3% of consolidated sales for the same period a year ago. The Company continued to manage its selling, general and administrative expenses to ensure that these expenses increase at a slower rate than sales growth. 15 Product development expense was $40.3 million or 10.9% of consolidated sales for the nine months ended December 31, 1998 as compared to $41.6 million or 11.8% of consolidated sales for the same period last year. Recapitalization-related costs. In connection with the Merger, the Company incurred $43.4 million, consisting of $39.9 million (including a $14.6 million non-cash charge) for the cancellation payments of employee stock options and compensation expense due to the acceleration of unvested stock options, and $3.5 million for certain other expenses resulting from the Merger, including employee termination expense. The Company incurred an additional $41.3 million in expenses, of which $27.3 million was capitalized and will be amortized over the life of the Senior Secured Credit Facilities and Senior Subordinated Notes, and $14.0 million was charged directly to shareholders' equity. Amortization of intangibles was $4.7 million or 1.3% of consolidated sales for the nine months ended December 31, 1998 as compared to $4.3 million or 1.2% of consolidated sales for the same period last year. The dollar increase was primarily attributable to increased goodwill amortization related to the acquisition of Pacific. Amortization of unearned compensation of $1.0 million relates to the amortization of the $9.7 million recorded within shareholders' equity related to the 14.3 million options that were issued in July, 1998 at a grant price lower than fair market value. Operating income (loss). Operating income decreased 73.6% to $13.8 million or 3.7% of consolidated sales for the nine months ended December 31, 1998 as compared to $52.2 million or 14.8% of consolidated sales for the same period a year ago. The loss is primarily attributable to the Recapitalization-related costs in connection with the Merger. Excluding these expenses, the Company generated operating income of $57.2 million or 15.5% of consolidated sales. The percentage increase was primarily attributable to lower operating expenses described above. Interest. Interest expense, net of interest income, was $30.2 million for the first nine months of fiscal 1999 as compared to net interest income of $1.3 million for the same period last year. The increase in net interest expense was attributable to the debt incurred in connection with the Merger on May 21, 1998. Also included in interest expense is $1.8 million of amortization expense related to deferred debt issuance costs. Gain on sale of subsidiary. On June 30, 1998 the Company sold the assets of ComCoTec for $21 million which resulted in a gain of $15.9 million. Income (loss) before income taxes. The Company incurred a loss before income taxes of $0.8 million for the nine months ended December 31, 1998 as compared to income before income taxes of $54.2 million for the same period last year. The loss is primarily due to an increase in interest expense and to the one- time Recapitalization-related costs which were in part offset by the gain on the sale of ComCoTec. Excluding the one-time charge and gain, income before income taxes for the nine months ended December 31, 1998 was $26.6 million or 7.2% of consolidated sales. The decrease is primarily due to additional interest expense offset in part by higher sales. Taxes. The effective tax rate for the first nine months of fiscal 1999 was 58% compared to a tax rate of 40.5% for the same period a year ago due to the permanent differences arising as a result of the accounting for the recapitalization, and a smaller amount of income (loss) before income taxes, which magnified the effect of such permanent differences. Net income (loss). Net income decreased $33.6 million to a net loss of $1.3 million or ($0.01) per share on a diluted basis for the nine months ended December 31, 1998 as compared to net income of $32.2 million or $1.85 per share on a diluted basis for the same period a year ago. The decrease was primarily attributable to the additional interest expense and the Recapitalization- related expenses incurred in connection with the Merger, offset by the gain on the sale of ComCoTec. 16 Backlog. Backlog at December 31, 1998 was $142.4 million, an increase of $63.3 million over the backlog at March 31, 1998. The increase is due primarily to the significant orders received at Itronix. Capital Resources and Liquidity The Company broadly defines liquidity as its ability to generate sufficient cash flow from operating activities to meet its obligations and commitments. In addition, liquidity includes the ability to obtain appropriate debt and equity financing and to convert into cash those assets that are no longer required to meet existing strategic and financial objectives. Therefore, liquidity cannot be considered separately from capital resources that consist of current or potentially available funds for use in achieving long-range business objectives and meeting debt service commitments. The Company's liquidity needs arise primarily from debt service on the substantial indebtedness incurred in connection with the Merger and from the funding of working capital and capital expenditures. As of December 31, 1998, the Company had $536.4 million of indebtedness, primarily consisting of $275.0 million principal amount of the Senior Subordinated Notes, $254.0 million in borrowings under the Term Loan Facility and $7.0 million in borrowings under the new Revolving Credit Facility. Cash flows. The Company's cash and cash equivalents decreased $28.4 million during the first nine months of fiscal 1999 principally due to the Recapitalization of the Company and repayment of debt. Working capital. During the first nine months of fiscal 1999, the Company's working capital increased as its operating assets and liabilities provided an $8.6 million source of cash, excluding the acquisition of Pacific. Inventory levels decreased, creating a source of cash of $8.1 million, due primarily to better inventory management at the Company's industrial computing and communications operations. Accounts receivable increased, creating a use of cash of approximately $19.8 million, due in part to the large increase in shipments at the end of the quarter as well as an increase in deferred service contract billings. Other current assets decreased, creating a source of cash of $2.4 million mainly due to the recognition of expenses previously capitalized in connection with the Merger. Accounts payable decreased, creating a use of cash of $1.0 million as a result of the timing of the payment of bills. Other current liabilities increased, creating a source of cash of $19.0 million. This is due to the increase in deferred service contract revenue; the accrual of interest on the debt incurred in connection with the recapitalization; and the accrual of expenses related to the final phase of the Merger. Investing activities. The Company's investing activities used a total of $10.8 million during the first nine months of fiscal 1999 primarily for the purchase and replacement of property and equipment and the payment of an earnout incentive related to the fiscal 1998 operating results of Advent Design, Inc., a subsidiary purchased in March, 1997. Also included in this total are the proceeds received from the sale of ComCoTec, offset by the cash purchase price for Pacific. The Company's capital expenditures were $7.4 million compared with $11.0 million for the same period last year. The decrease is primarily due to the timing of certain capital expenditure purchases. The Company anticipates capital expenditures to be approximately 30% below fiscal 1998 levels, primarily as a result of the reduction of commitments at the Company's test and industrial computing businesses. Debt and equity. The Company's financing activities used $33.6 million in cash during the first nine months of fiscal 1999, due mainly to the Merger. Debt Service. In connection with the Merger, the Company entered into a senior secured credit agreement (the "Senior Secured Credit Agreement") consisting of a $260 million term loan facility (the "Term Loan Facility") and a $110 million revolving credit facility (the "Revolving Credit Facility") (collectively, the "Senior Secured Credit Facilities"). In addition, the Company incurred $275 million of debt through the sale of its 9 3/4% Senior Subordinated Notes (the "Senior Subordinated Notes"). 17 In connection with the Merger and related transactions, Dynatech LLC became the primary obligor with respect to the Senior Secured Credit Facility and the Senior Subordinated Notes. See Note D. Financial Position of Dynatech Corporation and Dynatech LLC. Dynatech Corporation has guaranteed the Senior Secured Credit Facilities and the Senior Subordinated Notes. Principal and interest payments under the new Senior Secured Credit Agreement and interest payments on the Senior Subordinated Notes represent significant liquidity requirements for the Company. During fiscal 1999 the Company is required to make mandatory principal payments of $8 million of which $6 million was repaid during the first nine months of fiscal 1999. With respect to the $260 million initially borrowed under the Term Loan Facility (which is divided into four tranches, each of which has a different term and repayment schedule), the Company is required to make scheduled principal payments of the $50 million of tranche A term loan thereunder during its six-year term, with substantial amortization of the $70 million tranche B term loan, $70 million tranche C term loan and $70 million tranche D term loan thereunder occurring after six, seven and eight years, respectively. The $275 million of Senior Subordinated Notes will mature in 2008, and bear interest at 9 3/4% per annum. Total interest expense including the amortization of deferred debt issuance costs is expected to be approximately $47 million in fiscal 1999. The Senior Secured Credit Facilities are also subject to mandatory prepayment and reduction in an amount equal to, subject to certain exceptions, (a) 100% of the net proceeds of (i) certain debt offerings by the Company and any of its subsidiaries, (ii) certain asset sales by the Company or any of its subsidiaries, and (iii) casualty insurance, condemnation awards or other recoveries received by the Company or any of its subsidiaries, and (b) 50% of the Company's excess cash flow (as defined in the Senior Secured Credit Agreement) for each fiscal year in which the Company exceeds a certain leverage ratio. The Senior Subordinated Notes are subject to certain mandatory prepayments under certain circumstances. The Revolving Credit Facility matures in 2004, with all amounts then outstanding becoming due. The Company expects that its working capital needs will require it to obtain new revolving credit facilities at the time that the Revolving Credit Facility matures, by extending, renewing, replacing or otherwise refinancing the Revolving Credit Facility. No assurance can be given that any such extension, renewal, replacement or refinancing can be successfully accomplished or accomplished on acceptable terms. The loans under the Senior Secured Credit Agreement bear interest at floating rates based upon the interest rate option elected by the Company. The Company's weighted-average interest rate on the loans under the Senior Credit Agreement was 8.5% per annum for the period commencing May 21, 1998 and ending December 31, 1998, and is expected to be approximately 8.3% per annum for the period commencing January 1, 1999 and ending March 31, 1999. However, the Company has entered into interest rate swaps which will be effective for periods ranging from two to three years beginning September 30, 1998 to fix the interest charged on a portion of the total debt outstanding under the Term Loan Facility. After giving effects to these arrangements, approximately $220 million of the debt outstanding will be subject to an effective average annual fixed rate of 5.71% plus an applicable margin. See Note N. Interest Rate Swaps to the notes to condensed consolidated financial statements provided elsewhere in this report. As a result of the substantial indebtedness incurred in connection with the Merger, it is expected that the Company's interest expense will be higher and will have a greater proportionate impact on net income in comparison to preceding periods. Future Financing Sources and Cash Flows. The amount under the Revolving Credit Facility that remained undrawn following the May, 1998 closing of the Recapitalization was $70 million. The undrawn portion of this facility will be available to meet future working capital and other business needs of the Company. At December 31, 1998, the undrawn portion of this facility was $103 million. The Company believes that cash generated from operations, together with amounts available under the Revolving Credit Facility and any other available sources of liquidity, will be adequate to permit the Company to meet its debt service obligations, capital expenditure program requirements, ongoing operating costs and working capital needs, although no assurance can be given in this regard. The Company's future operating performance and ability to service or refinance the Senior Subordinated Notes and to repay, extend or refinance the Senior 18 Secured Credit Facilities (including the Revolving Credit Facility) will be, among other things, subject to future economic conditions and to financial, business and other factors, many of which are beyond the Company's control. Covenant Restrictions. The Senior Secured Credit Agreement imposes restrictions on the ability of the Company to make capital expenditures and both the Senior Secured Credit Facilities and the indenture governing the Senior Subordinated Notes limit the Company's ability to incur additional indebtedness. Such restrictions, together with the highly leveraged nature of the Company, could limit the Company's ability to respond to market conditions, to meet its capital-spending program, to provide for unanticipated capital investments, or to take advantage of business opportunities. The covenants contained in the Senior Secured Credit Agreement also, among other things, restrict the ability of the Company and its subsidiaries to dispose of assets, incur guarantee obligations, prepay other indebtedness, make restricted payments, create liens, make equity or debt investments, make acquisitions, modify terms of the indenture governing the Senior Subordinated Notes, engage in mergers or consolidations, change the business conducted by the Company and its subsidiaries taken as a whole or engage in certain transactions with affiliates. These restrictions, among other things, preclude Dynatech LLC from distributing assets to Dynatech Corporation (which has no independent operations and no significant assets other than its membership interest in Dynatech LLC), except in limited circumstances. In addition, under the Senior Secured Credit Agreement, the Company is required to comply with a minimum interest expense coverage ratio and a maximum leverage ratio. These financial tests become more restrictive in future years. The term loans under the Senior Secured Credit Facilities (other than the $50 million tranche A term loan) are governed by negative covenants that are substantially similar to the negative covenants contained in the indenture governing the Senior Subordinated Notes, which also impose restrictions on the operation of the Company's business. Year 2000 Broadly speaking, Year 2000 issues may arise when certain computer programs use only two digits to refer to a year or to recognize a year. As a result, computers that are not Year 2000 compliant may read the date 2000 as 1900. The Company is aware that Year 2000 issues could adversely impact its operations, and as detailed below, has commenced a process intended to address Year 2000 issues that the Company has been able to identify. The Company's program for addressing Year 2000 issues at each of its businesses generally comprises the following phases: inventory, assessment, testing and remediation. The scope of this program includes the review of the Company's products, information technology ("IT") systems, non-IT and embedded systems, and vendors/supply chain. State of Readiness. Management at each of the Company's businesses has commenced a review of its computer systems and products to assess exposure to Year 2000 issues. The review process is being conducted by employees with expertise in information technology as well as engineers familiar with non-IT systems, and focuses on both the Company's internal systems and its existing and installed base of products. Although the Company has used the services of consultants to a limited extent in connection with its assessment of some Year 2000 issues, it has not used independent verification and validation processes in the testing of its systems and products. As of December 31, 1998, the Company had conducted an inventory and test of its existing significant internal systems with regard to Year 2000 issues. The Company anticipates that additional testing and remediation of these systems will continue through June, 1999. As of December 31, 1998, the Company had conducted an inventory of its existing products. The Company anticipates that it will complete its inventory of its installed base of products by March 31, 1999. In particular, it is anticipated that significant focus and resources will be required for the assessment, testing and remediation process for the Industrial Computer Source existing product line and installed base of products. In determining state of readiness the Company has adopted the following definition: Year 2000 readiness means the intended functionality of a product, when used in accordance with its associated documentation, will correctly process, provide and/or receive date-data in and between the years 19 1999 and 2000, including leap year calculations, provided that all other products and systems (for example, hardware, software and firmware) used with the product properly exchange accurate date-data with it. As part of its assessment phase, the Company is in the process of communicating with its significant suppliers and customers to determine the extent to which the Company is vulnerable to any failure by those third parties to remediate their own Year 2000 issues. In addition, the Company is evaluating the extent to which Year 2000 issues may arise as a result of some combinations of certain of its products with other companies' products. If any such suppliers to customers or product combinations do not successfully and timely achieve Year 2000 compliance, the Company's business or operations could be materially adversely affected. The targeted completion date for the review and remediation process for the communications test business, the Company's largest, is June, 1999. As of December 31, 1998, the communications test business had completed the inventory, assessment and testing of its existing products. Management does not consider data time fields to be critical to the functionality of the Company's communications test products. For the Company's other product categories, which may employ data time fields in areas that are critical to product functionality, completion dates are targeted on or prior to June, 1999 for testing and remediation. Costs. The Company's historical and estimated costs of remediation have not been and are not anticipated to be material to the Company's financial position or results of operations, and will be funded through operating cash flows. Total costs associated with remediation of Year 2000 (including systems, software, and non-IT systems replaced as a result of Year 2000 issues) are currently estimated at approximately $3 million to $4 million, of which at least $2 million to $3 million remains to be spent. The largest cost factor to date has consisted of expenditure of management and employee time in attention to Year 2000 and related issues. Estimated remediation costs are based on management's best estimates. There can be no guarantee that these estimates will be achieved, and actual results could differ materially from those anticipated, particularly if unanticipated Year 2000 issues arise. Year 2000 Risks and Related Plans. While the Company expects to make the necessary modifications of changes to both its internal IT and non-IT systems and existing product base in a timely fashion, there can be no assurance that the Company's internal systems and existing or installed base of products will not be materially adversely affected by the advent of Year 2000. Certain of the Company's products are used, in conjunction with products of other companies, in applications that may be critical to the operations of its customers. Any product non-readiness, whether standing alone or used in conjunction with the products of other companies, may expose the Company to claims from its customers or others, and could impair market acceptance of the Company's products and services, increase service and warranty costs, or result in payment of damages, which in turn could materially adversely affect the Company. In the event of a failure as a result of Year 2000 issues, the Company could lose or have trouble accessing accurate internal data, resulting in incomplete or inaccurate accounting of Company financial results, the Company's manufacturing operating systems could be impaired, and the Company could be required to expend significant resources to address such failures. In an effort intended to minimize potential disruption to its internal systems, the Company intends to perform additional hard-disk back-up of its rudimentary systems and critical information in advance of the Year 2000. Similarly, in the event of a failure as a result of Year 2000 issues in any systems of third parties with whom the Company interacts, the Company could lose or have trouble accessing or receive inaccurate third party data, experience internal and external communications difficulties or have difficulty obtaining components that are Year 2000 compliant from its vendors. The Company could also experience a slowdown or reduction of sales if customers such as telecommunications companies or commercial airlines are adversely affected by Year 2000 issues. 20 The Euro Conversion On January 1, 1999, eleven of the fifteen member countries of the European Union (the "participating countries") established fixed conversion rates between their existing sovereign currencies (the "legacy currencies") and the euro. The participating countries agreed to adopt the euro as their common legal currency on that date. The euro now trades on currency exchanges for non- cash transactions. As of January 1, 1999, the participating countries no longer controlled their own monetary policies by directing independent interest rates for the legacy currencies. Instead, the authority to direct monetary policy, including money supply and official interest rates for the euro, is exercised by the new European Central Bank. Following introduction of the euro, the legacy currencies remain legal tender in the participating countries as denominations of the euro between January 1, 1999 and January 1, 2002 (the "transition period"). During the transition period, public and private parties may pay for goods and services using either the euro or the participating country's legacy currency. The impact of the euro is not expected to materially affect the results of operations of Dynatech. The Company operates primarily in U.S. dollar- denominated purchase orders and contracts, and the Company neither has a large customer nor vendor base within the countries participating in the euro conversion. New Pronouncements In the quarter ended June 30, 1998, the Company adopted Statement of Financial Accounting Standards No. 130 ("SFAS 130") "Reporting Comprehensive Income." SFAS 130 establishes standards for the reporting and display of comprehensive income and its components. SFAS 130 requires, among other things, foreign currency translation adjustments, which prior to adoption were reported separately in stockholders' equity to be included in other comprehensive income. In the quarter ended June 30, 1998, the Company adopted Statement of Position 97-2, "Software Revenue Recognition" ("SOP 97-2"). SOP 97-2 provides guidance on applying generally accepted accounting principles in recognizing revenue on software transactions. In June, 1997, the Financial Accounting Standards Board issued Statement No. 131 ("SFAS 131"), "Disclosures about Segments of an Enterprise and Related Information," which establishes standards for the reporting of operating segments in the financial statements. The Company is required to adopt SFAS 131 in the fourth quarter of fiscal 1999 and its adoption may result in the provision of additional details in the Company's disclosures. On June 15, 1998, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standards 133 ("SFAS 133"), "Accounting for Derivative Instruments and Hedging Activities." SFAS 133 is effective for all fiscal quarters of all fiscal years beginning after June 15, 1999. SFAS 133 requires that all derivative instruments be recorded on the balance sheet at their fair value. Changes in the fair value of derivatives are recorded each period in current earnings or other comprehensive income, depending on whether a derivative is designated as part of a hedge transaction and, if it is, the type of hedge transaction. Due to its limited use of derivative instruments, the Company is assessing the impact of the adoption of SFAS 133 on its results of operations and its financial position. Exchange Offer of Senior Subordinated Notes On October 8, 1998, Dynatech LLC commenced an offer to exchange, for the Senior Subordinated Notes, notes that are registered under the Securities Act of 1933 and that have materially identical terms (with minor exceptions relating to payment of additional interest and registration rights). All of the existing notes originally issued were tendered and exchanged for new notes. 21 PART II. Other Information Item 1. Legal Proceedings On June 27, 1996, Cincinnati Microwave, Inc. ("CMI") filed an action in the United States District Court for the Southern District of Ohio against the Company and Whistler Corporation of Massachusetts ("Whistler"), alleging willful infringement of CMI's patent for a mute function in radar detectors. In 1994, the Company sold its radar detector business to Whistler. The Company and Whistler have asserted in response that they have not infringed, and that the patent is invalid and unenforceable. The Company obtained an opinion of counsel from Bromberg & Sunstein LLP in connection with the manufacture and sale of the Company's Whistler series radar detectors and will be offering the opinion, among other things, as evidence that any alleged infringement was not willful. Litigation is on-going. The Company intends to defend the lawsuit vigorously and does not believe that the outcome of the litigation is likely to have a material adverse effect on the Company's financial condition, results of operations or liquidity. Item 2. Changes in Securities and Use of Proceeds On May 21, 1998, the Company was merged with MergerCo. In the Merger, (i) each then outstanding share of Common Stock of the Company was converted into the right to receive $47.75 in cash and 0.5 shares of Recapitalized Common Stock, which shares were registered on a Registration Statement on Form S-4 and (ii) the then outstanding 111,590,528 shares of common stock of MergerCo were converted on a one-for-one basis into an equal number of shares of Recapitalized Common Stock pursuant to the exemption from registration provided by Section 4(2) of the Securities Act of 1933, as amended. Item 4. Submission of Matters to a Vote None Item 6. Exhibits and Reports on Form 8-K (a) Exhibits The exhibit numbers in the following list correspond to the numbers assigned to such exhibits in the Exhibit Table of Item 601 of Regulation S-K:
Exhibit Number Description ------- ----------- 3.1 Certificate of Amendment of Certificate of Formation of Telecommunications Techniques Co., LLC, filed with the Secretary of State of Delaware on December 21, 1998. 10.1 Amended and Restated Employment Agreement, entered into November 1, 1998, by and between Dynatech Corporation and John F. Reno. 10.2 Amended and Restated Employment Agreement, entered into November 1, 1998, by and between Dynatech Corporation and Allan M. Kline. 10.3 Amended and Restated Employment Agreement, entered into November 1, 1998, by and between Dynatech Corporation and John R. Peeler. 27 Financial Data Schedule.
(b) Reports on Form 8-K None 22 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. DYNATECH CORPORATION Date February 3, 1999 /s/ ALLAN M. KLINE _____________________________________ Allan M. Kline Vice President, Chief Financial Officer and Treasurer Date February 3, 1999 /s/ ROBERT W. WOODBURY, JR. _____________________________________ Robert W. Woodbury, Jr. Vice President, Corporate Controller and Principal Accounting Officer 23 EX-3.1 2 CERTIFICATE OF AMENDMENT CERTIFICATE OF AMENDMENT OF CERTIFICATE OF FORMATION OF TELECOMMUNICATIONS TECHNIQUES CO., LLC -------------------------------------- Pursuant to Section 18-202 of the Limited Liability Company Act of the State of Delaware ---------------------------------------- TELECOMMUNICATIONS TECHNIQUES CO., LLC, a limited liability company organized and existing under and by virtue of the Limited Liability Company Act of the State of Delaware (the "Company"), DOES HEREBY CERTIFY: That the Certificate of Formation of the Company is hereby amended by changing the name of the Corporation to DYNATECH, LLC. IN WITNESS WHEREOF, the Company, has caused this Certificate of Amendment of Certificate of Formation to be executed by a duly authorized officer thereof as of the 21st day of December, 1998. DYNATECH LLC By:/s/ Mark V.B. Tremallo ------------------------------------- Mark V. B. Tremallo Corporate Vice President and General Counsel EX-10.1 3 EMPLOYMENT AGREEMENT BETWEEN CO. & J. RENO AMENDED AND RESTATED EMPLOYMENT AGREEMENT This AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into this 1st day of November, 1998, by and between Dynatech Corporation, a Massachusetts corporation ("Employer"), and John F. Reno ("Executive"). W I T N E S S E T H : WHEREAS, Executive is currently employed by Employer as its Chairman, President and Chief Executive Officer; WHEREAS, pursuant and subject to the terms of the Agreement and Plan of Merger, dated as of December 20, 1997 (the "Merger Agreement"), by and between Employer and CDRD Merger Corporation, a Delaware corporation ("MergerCo"), Employer will be merged with and into MergerCo (the "Merger") and Employer will be the surviving corporation to the Merger; WHEREAS, Executive and Employer are currently parties to an Amended and Restated Employment Agreement, dated as of May 21, 1998 (the "Prior Agreement") which sets forth the terms and conditions of Executive's employment with Employer following the Merger; WHEREAS, Employer wishes to secure the continued services of Executive and Executive desires to accept such continued employment, in each case, on the terms and conditions set forth herein; WHEREAS, Employer and Executive wish to amend and restate the Prior Agreement in its entirety, as set forth herein (as so amended and restated, the "Amended Agreement"); WHEREAS, Employer and Executive acknowledge and agree that Executive has had and will continue to have a prominent role in the management of the business, and the development of the goodwill, of Employer and its Affiliates (as defined below) and has established and developed and will continue to establish and develop relations and contacts with the principal customers and suppliers of Employer and its Affiliates in the United States, Europe, the Pacific Rim and the rest of the world, all of which constitute valuable goodwill of, and could be used by Executive to compete unfairly with, Employer and its Affiliates; WHEREAS, (i) in the course of his employment with Employer, Executive has - obtained and will continue to obtain confidential and proprietary information and trade secrets concerning the business and operations of Employer and its Affiliates in the United States, Europe, the Pacific Rim and the rest of the world that could be used to compete unfairly with Employer and its Affiliates; (ii) the covenants and restrictions contained in Sections 8 through 13, - --- inclusive, are intended to protect the legitimate interests of Employer and its Affiliates in their respective goodwill, trade secrets and other confidential and proprietary information; and (iii) Executive desires to be bound by such --- covenants and restrictions; NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises contained herein and for other good and valuable consideration, Employer and Executive hereby agree to amend and restate the Employment Agreement as follows: 1. Agreement to Continue Employment. Upon the terms and subject to the --------------------------------- conditions of this Amended Agreement, Employer hereby continues the employment of Executive, and Executive hereby accepts such continued employment by Employer. 2. Term; Position and Responsibilities. ----------------------------------- (a) Term of Employment. Unless Executive's employment shall sooner ------------------ terminate pursuant to Section 7, Employer shall employ Executive for a term commencing on the date of the consummation of the Merger (the "Commencement Date") and ending on the fifth anniversary of the Commencement Date (the "Initial Term"). Effective upon the expiration of the Initial Term and of each Additional Term (as defined below), Executive's employment hereunder shall be deemed to be automatically extended, upon the same terms and conditions, for an additional period of one year (each, an "Additional Term"), in each such case, commencing upon the expiration of the Initial Term or the then current Additional Term, as the case may be, unless Employer, at least 60 days prior to the expiration of the Initial Term or such Additional Term, shall give written notice (a "Non-Extension Notice") to Executive of its intention not to extend the Employment Period (as defined below) hereunder, provided that a Non- -------- Extension Notice shall not constitute a notice to Executive of the termination of his employment by Employer unless such notice specifically provides for such termination of employment and the specific date thereof. The period during which Executive is employed pursuant to this Amended Agreement, including any extension thereof in accordance with the preceding sentence, shall be referred to as the "Employment Period". 2 (b) Position and Responsibilities. During the Employment Period, ----------------------------- Executive shall serve as Chairman, President and Chief Executive Officer of Employer and have such duties and responsibilities as are customarily assigned to individuals serving in such position and such other duties consistent with Executive's title and position as the Board of Directors of Employer (the "Board") specifies from time to time. Executive shall devote all of his skill, knowledge and working time (except for (i) vacation time as set forth in Section - 6(c) and absence for sickness or similar disability and (ii) to the extent that -- it does not interfere with the performance of Executive's duties hereunder, (A) - such reasonable time as may be devoted to service on boards of directors of other corporations and entities, subject to the provisions of Section 9, and the fulfillment of civic responsibilities and (B) such reasonable time as may be - necessary from time to time for personal financial matters) to the conscientious performance of the duties and responsibilities of such position. During the Employment Period, Employer shall use its reasonable best efforts to cause Executive to be nominated and elected to serve as a member of the Board of Directors, without additional compensation. 3. Base Salary. As compensation for the services to be performed by ----------- Executive during the Employment Period, Employer shall pay Executive a base salary at an annualized rate of $500,000, payable in installments on Employer's regular payroll dates. The Board shall review Executive's base salary annually during the period of his employment hereunder and, in its sole discretion, the Board may increase (but may not decrease) such base salary from time to time based upon the performance of Executive, the financial condition of Employer, prevailing industry salary levels and such other factors as the Board shall consider relevant. (The annual base salary payable to Executive under this Section 3, as the same may be increased from time to time and without regard to any reduction therefrom in accordance with the next sentence, shall hereinafter be referred to as the "Base Salary".) The Base Salary payable under this Section 3 shall be reduced to the extent that Executive elects to defer such Base Salary under the terms of any deferred compensation, savings plan or other voluntary deferral arrangement that may be maintained or established by Employer. 4. Incentive Compensation Arrangements. ----------------------------------- (a) Annual Incentive Compensation. During the Employment Period, Employer ----------------------------- shall maintain an annual incentive compensation program for its senior executives in which Executive shall be entitled to participate in accordance with the terms thereof as in effect from time to time, at a level commensurate with his position and duties with Employer, which program shall be operated in accordance with Employer's customary corporate practices and shall provide for an annual bonus based on such performance targets as may be established from time to time by the Compensation Committee of the Board. 3 (b) Roll-Over of Certain Options; Retention of Equity. ------------------------------------------------- (i) Prior to the Merger, Executive was the beneficial owner of 40,804 shares (together with the rights associated therewith pursuant to the Shareholders' Rights Agreement, dated as of February 16, 1989, as amended and restated as of March 12, 1990, the "Previously Owned Shares") of the common stock, par value $.20 per share, of Employer (the "Prior Common Stock"), including 30,000 shares held in two family trusts, and held options (the "Prior Options") to purchase 413,000 additional shares of Prior Common Stock. (ii) Immediately prior to the effective time of the Merger (the "Effective Time"), Executive contributed all of the Previously Owned Shares to MergerCo in exchange for shares of common stock, par value $.20 per share, of MergerCo (the "MergerCo Common Stock"), which shares of MergerCo Common Stock were converted into a like number of shares of common stock, par value $.20 per share, of the corporation surviving the Merger (the "Recapitalized Common Stock"). (iii)(x) In the case of each Prior Option that, immediately prior to - the Effective Time, was intended to be a nonqualified stock option (each, a "Prior Nonqualified Option"), such Prior Nonqualified Stock Option became fully vested and exercisable as of the Effective Time and (y) in the case of each - Prior Option (each, a "Prior ISO")that, immediately prior to the Effective Time, was intended to qualify as an "incentive stock option" under section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), (A) each Prior ISO that - had become vested and exercisable prior to the Effective Time in accordance with the award agreement evidencing such Prior ISO remains fully vested and exercisable from and after the Effective Time, (B) Prior ISOs that had not - become vested and exercisable prior to the Effective Time having an aggregate exercise price not exceeding the excess of (1) $100,000 over - (2) the aggregate exercise price of any Prior ISOs that become vested - in calendar year 1998 prior to the Effective Time became vested and exercisable as of the Effective Date and (C) each - remaining Prior ISO shall become vested after the Effective Time in accordance with the terms of the award agreement evidencing such Prior ISO. At the Effective Time, each Prior Option was automatically converted into an option (the "Recapitalized Option") to purchase a number of shares (such shares, the "Recapitalized Option Shares") of common stock, par value $.20 per share, of the corporation surviving the Merger (the "Recapitalized Common Stock") equal to the sum of: 4 (x) the quotient of (I) the product of (A) the number of shares of Prior Common - Stock subject to such Prior Option immediately prior to the Effective Time, multiplied by (B) the cash consideration per - share of Prior Common Stock paid pursuant to the Merger Agreement to holders of Prior Common Stock, divided by (II) the price per share of Recapitalized Common Stock paid by the CD&R Fund (as defined below) for the shares of MergerCo which were exchanged for the shares of the Company's Recapitalized Common Stock upon the consummation of the Merger, and (y) the product of (I) the number of shares of Prior Common Stock - subject to such Prior Option immediately prior to the Effective Time, multiplied by (II) the number of shares of Recapitalized Common Stock -- transferred pursuant to the Merger Agreement to holders of Prior Common Stock for each such share of Prior Common Stock. Each Recapitalized Option shall have an exercise price per Recapitalized Option Share equal to the quotient of: (x) the aggregate exercise price for all shares of Prior Common Stock subject to the corresponding Prior Option, divided by (y) the number of Recapitalized Option Shares subject to such Recapitalized Option immediately following the conversion thereof contemplated hereby. Each of the Company and Executive agree that the foregoing adjustment in the number of shares and the exercise prices applicable in respect of Recapitalized Options is intended to comply with the procedures for adjusting the number of shares subject to stock options (and the corresponding exercise prices) in a corporate transaction under Section 424 of the Code and the regulations thereunder, regardless of whether such Section is applicable to such Recapitalized Options. The method used to determine fair market value of the Company's stock for purposes of such adjustment as a result of the Merger was the arm's length negotiated value assigned to the Recapitalized Common Stock in connection with the Merger (the "Merger Method"), which is one of several acceptable valuation methods expressly set forth in Treas. Reg. (S)1.425- 1(b)(7). 5 (iv) Each Recapitalized Option that is the successor option to a Prior Nonqualified Option shall provide that it shall expire on the normal expiration date specified in the option award agreement evidencing such corresponding Prior Nonqualified Option that applies if Executive's employment continues at least until such date (such expiration date, the "Original Termination Date"), provided that (x) in the event of the termination of - Executive's employment with Employer prior to an applicable Original Termination Date as a result of Executive's death, Executive's Disability (as defined below), a termination of Executive's employment by Employer Without Cause (as defined below) or a termination of Executive's employment by Executive for Good Reason (as defined below), each such Recapitalized Option that is then outstanding shall expire on the earlier of (I) the Original Termination Date and - (II) the later of (A) the six month anniversary of the date of the expiration of -- - any initial lock-up period imposed on sales of Recapitalized Common Stock in connection with the first underwritten public offering of any shares of Recapitalized Common Stock led by one or more underwriters, at least one of which is of nationally recognized standing (such expiration date, the "Lock-Up Expiration Date"), and (B) the first anniversary of the applicable Date of - Termination (as defined below) and (y) in the event of the termination of - Executive's employment with Employer prior to such Original Termination Date for any reason other than the reasons described in the immediately preceding clause (x), each such Recapitalized Option that is then outstanding shall expire on the - earliest of (I) the Original Termination Date, (II) the later of (1) the 90th - -- - day following the Lock-Up Expiration Date and (2) the 30th day following the - applicable Date of Termination and (III) the first anniversary of the applicable --- Date of Termination. Each Recapitalized Option that is the successor option to a Prior ISO shall provide that it shall expire on the expiration date specified in the option award agreement evidencing such corresponding Prior ISO, including, without limitation, any such early expiration date applicable in the case of a termination of Executive's employment. (v) Executive, Employer and Clayton, Dubilier & Rice Fund V Limited Partnership (the "CD&R Fund") shall enter into a separate agreement (the "Ancillary Agreement"), to become effective as of the Effective Time, that will provide, among other things, that: (A) during the Employment Period, the CD&R Fund will vote its shares of Recapitalized Common Stock in favor of the election of Executive to serve as a member of the Board; (B) Executive shall not be permitted, at any time during his employment with Employer, to sell, transfer or otherwise dispose of any shares of Recapitalized Common Stock beneficially owned by him (including any Recapitalized Option Shares), other than (I) transfers upon death to - Executive's estate, (II) transfers to -- 6 family trusts or partnerships for estate planning purposes or (III) de --- minimis transfers during the Employment Period not exceeding, in the aggregate, 25% of the sum of the aggregate shares of Recapitalized Common Stock beneficially owned by Executive as of the Commencement Date and the aggregate Recapitalized Option Shares subject to the Recapitalized Options held by Executive as of the Commencement Date, provided, in the case of any -------- transfer pursuant to the foregoing clause (I) or (II), that the executor of Executive's estate or the trustee or general partner of any such trust or partnership, as applicable, shall agree, in form and substance reasonably satisfactory to Employer, to be bound by all of the provisions of the Ancillary Agreement; (C) following any termination of Executive's employment with Employer, Employer and the CD&R Fund shall have successive rights to repurchase any Recapitalized Options and/or Recapitalized Option Shares then beneficially owned or held by Executive for a purchase price equal to the then fair market value of the Recapitalized Option Shares or the Recapitalized Option Shares then subject to the Recapitalized Options, as applicable (reduced by the option exercise price in the case of a purchase of Recapitalized Options), such fair market value to be determined in good faith by the Board on the basis of an independent valuation of the Recapitalized Common Stock, provided, that the determination of such fair market value will not -------- give effect to (x) any restrictions on transfer of such shares, (y) the - - fact that such shares are not registered for resale by Executive under the Securities Act of 1933, as amended, or (z) the fact that such shares would - represent a minority interest in Employer; (D) in the event of certain qualifying sales of Recapitalized Common Stock by the CD&R Fund, Executive shall have the right to sell a pro rata portion of the shares of Recapitalized Common Stock then owned by him, on the same terms and conditions as the CD&R Fund; and (E) in the event of the sale by the CD&R Fund of substantially all of the Recapitalized Common Stock then beneficially owned by it (other than any such sale to an Affiliate of the CD&R Fund), the CD&R Fund shall have the right to require Executive to sell the same percentage of the Recapitalized Common Stock then beneficially owned by him as will be sold by the CD&R Fund, on the same terms and conditions as the CD&R Fund, and Employer shall have the right to cause any Recapitalized Options then held by Executive to be canceled in exchange for a payment in respect of each Recapitalized Option Share covered by such Recapitalized Options equal to the excess, if any, of the price per share of Recapitalized Common Stock paid to holders of Recapitalized Common Stock in connection with such sale over the applicable option exercise price. 7 (F) The transfer restrictions described in the foregoing subparagraph (B) shall terminate on the earlier of (I) the fifth anniversary of the - Commencement Date and (II) the Lock-Up Expiration Date. The rights and -- obligations of Executive and Employer under the foregoing subparagraphs (C), (D) and (E) of this Section 4(b)(v) shall terminate on the closing date following the effective date of the first registration statement filed under the Securities Act by Employer after the Commencement Date with respect to an underwritten public offering of any shares of Employer's capital stock led by one or more underwriters, at least one of which is of nationally recognized standing. (c) In the event that, due to the adjustment provided in this Section 4 with respect to the number of shares of the Recapitalized Common Stock subject to Recapitalized Options, the amount of Covered Federal Taxes (as defined below) payable by Executive solely in respect of the Recapitalized Options exceeds the amount of such Covered Federal Taxes that would have been incurred by Executive solely in respect of the Recapitalized Options had the proper adjustment applicable to such Recapitalized Options been finally determined for Federal income tax purposes to be a method of adjustment other than the Merger Method and, as a result, the amount of Covered Federal Taxes payable by Executive exceeds the amount of such Covered Federal Taxes otherwise payable by Executive, to be determined after first taking into account the provisions of Section 7(i)(i)-(v) hereof (such excess hereinafter referred to as the "Excess Liability"), the Company shall, in addition to any other amounts payable to Executive under this Agreement, pay to Executive an amount equal to the sum of (i) such Excess Liability and (ii) any and all Covered Federal Taxes and any - -- other Federal taxes and any state or local income and employment taxes, if any, incurred by Executive by reason of the payment required to be made under this Section 4(c). For purposes of this Section 4(c), Covered Federal Taxes shall mean any tax imposed on Executive under any provision of the Code as in effect on the date hereof (or any successor provision thereto), other than any income, employment, estate or gift tax. 5. Employee Benefits. During the Employment Period, Executive shall be ----------------- entitled to participate in all of Employer's profit sharing, pension, savings, deferred compensation, supplemental savings, life, medical, dental and disability insurance plans, as the same may be amended and in effect from time to time, applicable to senior executives of Employer, provided that Executive -------- shall not be entitled to participate in any severance plan of Employer or otherwise receive any severance benefits under any other type of plan. The benefits referred to in this Section 5 shall be provided to Executive on a basis that is commensurate with Executive's position and duties with Employer 8 hereunder and shall be substantially comparable, in the aggregate, to the benefits (exclusive of severance and equity or other incentive compensation benefits) provided to Executive immediately prior to the Commencement Date. 6. Perquisites and Expenses. ------------------------ (a) General. During the Employment Period, Executive shall be entitled to ------- participate in all special benefit or perquisite programs generally available from time to time to senior executives of Employer, including Employer's programs providing for reimbursement of certain automobile expenses, club social dues and fees for tax return preparation, financial planning and investment advisory services, on the terms and conditions in effect from time to time under each such program. (b) Business Travel, Lodging, etc. Employer shall reimburse Executive for ------------------------------ reasonable travel, lodging, meal and other reasonable expenses incurred by him in connection with his performance of services hereunder upon submission of evidence, satisfactory to Employer, of the incurrence and purpose of each such expense and otherwise in accordance with Employer's business travel reimbursement policy applicable to its senior executives as in effect from time to time. (c) Vacation. During the Employment Period, Executive shall be entitled -------- to a number of weeks of paid vacation, without carryover accumulation, determined in accordance with the terms of Employer's vacation policy applicable to senior executives as in effect from time to time. As soon as reasonably practicable following the Commencement Date, Employer shall pay Executive a cash amount equal to $96,829, which shall be in full and complete satisfaction of all then unpaid vacation pay accrued by Executive with respect to periods of employment completed prior to November 30, 1997. 7. Termination of Employment. ------------------------- (a) Termination Due to Death or Disability. In the event that Executive's -------------------------------------- employment hereunder terminates due to death or is terminated by Employer due to Executive's Disability (as defined below), no termination benefits shall be payable to or in respect of Executive except as provided in Section 7(f)(ii). For purposes of this Amended Agreement, "Disability" shall mean a physical or mental disability that prevents the performance by Executive of his duties hereunder lasting (or likely to last, based on competent medical evidence presented to the Board) for a continuous period of six months or longer. The reasoned and good faith judgment of the Board as to Executive's Disability shall be based on such competent medical evidence as shall be pre- 9 sented to it by Executive or by any physician or group of physicians or other competent medical experts employed by Executive or Employer to advise the Board. (b) Termination by Employer for Cause. Executive's employment with --------------------------------- Employer may be terminated by Employer for Cause (as defined below), provided -------- that Executive shall be permitted to attend a meeting of the Board within 30 days after delivery to him of a Notice of Termination (as defined below) pursuant to this Section 7(b) to explain why he should not be terminated for Cause and, if following any such explanation by Executive, the Board determines that Employer does not have Cause to terminate Executive's employment, any such prior Notice of Termination delivered to Executive shall thereupon be withdrawn and of no further force or effect. "Cause" shall mean (i) the willful failure - of Executive substantially to perform his duties hereunder (other than any such failure due to Executive's physical or mental illness) or other willful and material breach by Executive of any of his obligations hereunder, after a written demand for substantial performance has been delivered, and a reasonable opportunity to cure has been given, to Executive by the Board, which demand identifies in reasonable detail the manner in which the Board believes that Executive has not substantially performed his duties or has breached his obligations, (ii) Executive's dishonesty or engaging in willful and serious -- misconduct, which misconduct has caused or is reasonably expected to result in direct or indirect material injury to Employer or any of its Affiliates or (iii) --- Executive's conviction of, or entering a plea of guilty or nolo contendere to, a ---- ---------- crime that constitutes a felony. (c) Termination Without Cause. A termination "Without Cause" shall mean a ------------------------- termination of Executive's employment by Employer other than due to Disability as described in Section 7(a) or for Cause as described in Section 7(b). (d) Termination by Executive. Executive may terminate his employment for ------------------------ any reason. A termination of employment by Executive for "Good Reason" shall mean a termination by Executive of his employment with Employer within 30 days following the occurrence, without Executive's consent, of any of the following events: (i) the assignment to Executive of (x) a title that is different from, - - and a diminution from, the title specified in Section 2 or (y) duties that are - significantly different from, and that result in a substantial diminution of, the duties that he is to assume on the Commencement Date, (ii) the failure of -- Employer to obtain the assumption of this Amended Agreement by any Successor (as defined below) to Employer as contemplated by Section 14, (iii) a reduction in --- the rate of Executive's Base Salary, (iv) a material reduction in the aggregate -- level of employee and executive benefits provided to Executive pursuant to Section 5 hereof, (v) Employer's delivery to Executive of a Non-Extension Notice - or (vi) a relocation of Executive's principal place of business to a location -- beyond a radius of 30 miles from the location of such place of business on the Commencement Date, provided that, within 30 days following the occurrence of any -------- of 10 the events set forth therein, Executive shall have delivered written notice to Employer of his intention to terminate his employment for Good Reason, which notice specifies in reasonable detail the circumstances claimed to give rise to Executive's right to terminate his employment for Good Reason, and Employer shall not have cured such circumstances to the reasonable satisfaction of Executive. (e) Notice of Termination. Any termination of Executive's employment --------------------- hereunder by Employer pursuant to Section 7(a), 7(b) or 7(c), or by Executive pursuant to Section 7(d), shall be communicated by a written Notice of Termination addressed to the other. A "Notice of Termination" shall mean a notice stating that Executive's employment with Employer has been or will be terminated and setting forth the provisions hereof pursuant to which such employment has or will be terminated. (f) Payments Upon Certain Terminations. ---------------------------------- (i) In the event of a termination of Executive's employment by Employer Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, Employer shall pay to Executive his full Base Salary through the Date of Termination and an amount equal to the pro rata amount of annual incentive compensation for the portion of the fiscal year preceding the Date of Termination that would have been payable to Executive pursuant to Section 4(a) if he had remained employed for the entire fiscal year, determined on the basis of the actual performance achieved by Employer through the Date of Termination and the performance objectives established for such fiscal year, pro rated to reflect the calculation of such annual incentive compensation for the portion of the fiscal year preceding the Date of Termination. In addition, in the event of any such termination, Employer shall pay or, in the case of the Continued Benefits (as defined below), provide to Executive (or, following his death, to Executive's designated beneficiary or beneficiaries), as liquidated damages, (A) his Average Base Salary (as defined below), which shall be payable in installments on Employer's regular payroll dates, for the period beginning on the Date of Termination (as defined below) and ending on the second anniversary of the Date of Termination (such period, the "Severance Period") and (B) on the last day of each calendar month included in the Severance Period, an amount equal to one-twelfth of the Average Annual Bonus (as defined below); and 11 (C) continued coverage for Executive and his eligible dependents under Employer's medical insurance plans referred to in Section 5 (the "Continued Benefits") during the period commencing on the Termination Date and ending on the earlier of (i) Executive's 65th birthday and (ii) the date of - -- Executive's death, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of Employer under the terms of such plans as in effect from time to time; provided that Employer may, at any time, pay to Executive, in a single lump sum - -------- and in satisfaction of Employer's obligations under clauses (A) and (B) of this Section 7(f)(i), an amount equal to the present value (as determined by Employer using a discount rate equal to the then prevailing applicable federal short-term rate under section 1274(d) of the Code) of the sum of the installments of the Average Base Salary and Average Annual Bonus then remaining to be paid to Executive pursuant to clauses (A) and (B) above. Executive shall not have a duty to mitigate the costs to Employer under this Section 7(f)(i), except that (i) payments of Base Salary and Average - Annual Bonus will be reduced, but not below zero, by the amount of any compensation earned by Executive (whether paid currently or deferred) during any portion of the Severance Period from any subsequent employer or other Person (as defined in Section 17(k) below) for which Executive performs services, including but not limited to consulting services, and (ii) Continued Benefits shall be -- reduced or canceled if comparable medical benefit coverage is provided or offered to Executive by any subsequent employer or other Person for which Executive performs services, including but not limited to consulting services, at any time after the Date of Termination. The term "Average Annual Bonus" means the average of the annual bonuses paid to Executive pursuant to Employer's annual incentive compensation plan for each of the three fiscal years of Employer ending immediately prior to the Date of Termination or, if fewer, each of such fiscal years during which Executive was at any time employed by Employer and the term "Average Base Salary" means the average of the annual base salary rate of Executive in effect immediately prior to the Date of Termination and as of the last day of each of the two fiscal years of Employer ending immediately prior to the Date of Termination or, if fewer, each of such fiscal years during which Executive was at any time employed by Employer; provided that if Executive's employment is -------- terminated by Executive pursuant to clause (iii) of the definition of Good Reason, Executive's annual base salary rate in effect immediately prior to any reduction thereof shall be substituted for Executive's annual base salary rate in effect immediately prior to the Date of Termination in calculating the Average Base Salary. 12 (ii) If Executive's employment shall terminate upon his death or Disability or if Employer shall terminate Executive's employment for Cause or Executive shall terminate his employment without Good Reason during the Employment Period, Employer shall pay Executive his full Base Salary through the Date of Termination and, in the case of any such termination upon Executive's death or Disability, Executive shall be entitled to receive (x) a cash payment - equal to the pro rata amount of annual incentive compensation for the portion of the fiscal year preceding the Date of Termination (exclusive of any time between the onset of a physical or mental disability that prevents the performance by Executive of his duties hereunder and the resulting Date of Termination) that would have been payable to Executive pursuant to Section 4(a) if he had remained employed for the entire fiscal year, determined on the basis of the actual performance achieved by Employer through the Date of Termination and the performance objectives established for such fiscal year, pro rated to reflect the calculation of such annual incentive compensation for the portion of the fiscal year preceding the Date of Termination and (y) such death or Disability - benefits, as applicable, as are provided under the terms of any employee and executive death benefit and disability plans and programs referred to in Section 5 or 6(a). (iii) Except as specifically set forth in this Section 7(f), Executive shall be entitled to receive all amounts payable and benefits accrued under any otherwise applicable plan, policy, program or practice of Employer in which Executive was a participant during his employment with Employer (including, without limitation, Employer's 401(k) Savings Plan and Supplemental 401(k) Savings Plan) in accordance with the terms thereof, provided that Executive shall not be entitled to receive any payments or benefits under any such plan, policy, program or practice providing any bonus or incentive compensation or severance compensation or benefits (and the provisions of this Section 7(f) shall supersede the provisions of any such plan, policy, program or practice). (g) Date of Termination. As used in this Amended Agreement, the term ------------------- "Date of Termination" shall mean (i) if Executive's employment is terminated by - his death, the date of his death, (ii) if Executive's employment is terminated -- by Employer for Cause, the date on which Notice of Termination is given as contemplated by Section 7(e) or, if later, the date of termination specified in such Notice, and (iii) if Executive's employment is terminated by Employer --- Without Cause, due to Executive's Disability or by Executive for any reason, the date that is 30 days after the date on which Notice of Termination is given as contemplated by Section 7(e) or, if no such Notice is given, immediately upon the termination of Executive's employment. (h) Resignation upon Termination. Effective as of any Date of Termination ---------------------------- under this Section 7 or otherwise as of the date of Executive's termination of 13 employment with Employer, Executive shall resign, in writing, from all Board memberships and other positions then held by him with Employer and its Affiliates. (i) Limit on Payments by the Company. -------------------------------- (i) Notwithstanding any provision of this Amended Agreement other than Section 7(i)(vi) below, in the event that any amount or benefit paid, payable or distributed to Executive pursuant to this Amended Agreement which is a parachute payment as defined in Section 280G of the Code, taken together with any amounts or benefits otherwise paid, payable or distributed to Executive by Employer or any Affiliate thereof which are parachute payments as defined in Section 280G of the Code (collectively, the "Covered Payments"), would be an "excess parachute payment" as defined in Section 280G of the Code, and would thereby subject Executive to the tax (the "Excise Tax") imposed under Section 4999 of the Code (or any similar tax that may hereafter be imposed), the provisions of this Section 7(i) shall apply to determine the amounts payable to Executive pursuant to Section 7(f) of this Amended Agreement. (ii) Immediately following delivery of any Notice of Termination, the Company shall notify Executive of the aggregate present value of all termination benefits to which he would be entitled under this Amended Agreement and any other plan, program or arrangement as of the projected Date of Termination, together with the projected maximum payments, determined as of such projected Date of Termination that could be paid without Executive being subject to the Excise Tax. (iii) If the aggregate value of all parachute payments to be paid or provided to Executive under this Amended Agreement and any other plan, agreement or arrangement with Employer or any Affiliate thereof exceeds the amount of parachute payments which can be paid to Executive without Executive incurring an Excise Tax, then the amounts payable to Executive under Section 7(f) shall be reduced (but not below zero) to the maximum amount which may be paid hereunder without Executive becoming subject to such an Excise Tax (such amount to be referred to as the "Payment Cap"). In the event that Executive receives reduced payments and benefits hereunder, Executive shall have the right to designate which of the payments and benefits otherwise provided for in Section 7(f) of this Amended Agreement he will receive in connection with the application of the Payment Cap. (iv) For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) (x) whether any amount or benefit paid, payable or distributed to Executive is a "parachute payment" within the meaning of Section 280G of the Code, and (y) whether there are "parachute payments" in excess of 14 the "base amount" (as defined under Section 280G(b)(3) of the Code) shall be determined in good faith by Employer's independent certified public accountants or tax counsel selected by such accountants (the "Accountants"), provided however that payments or benefits made or provided to Executive pursuant to Sections 3 through 6 of this Amended Agreement in respect of periods of Executive's employment with Employer (other than any amount attributable to the acceleration of any Prior Options) shall not be treated as parachute payments, and (B) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (v) If Executive receives reduced payments and benefits as a result of the provisions of this Section 7(i) (or this Section 7(i) is determined not to be applicable to Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that, notwithstanding the good faith of Executive and Employer in applying the terms of this Amended Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to Executive or for his benefit are in an amount that would result in Executive's being subject to an Excise Tax, then any amounts actually paid to or on behalf of Executive which are treated as excess parachute payments shall be deemed for all purposes to be a loan to Executive made on the date of receipt of such excess payments, which Executive shall have an obligation to repay to Employer on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by Executive. If Executive receives reduced payments and benefits by reason of this Section 7(i) and it is established pursuant to a Final Determination that Executive could have received a greater amount without exceeding the Payment Cap, then Employer shall promptly thereafter pay Executive the aggregate additional amount which could have been paid without exceeding the Payment Cap, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the original payment due date to the date of actual payment by Employer. (vi) Notwithstanding anything else contained in this Section 7(i) to the contrary, nothing in this Section 7(i) shall be construed to limit the Company's obligation to make any payment to Executive with respect to any Excess Liability determined pursuant to Section 4(c) above. 15 8. Unauthorized Disclosure. During the period of Executive's employment ----------------------- with Employer and the ten year period following any termination of such employment, without the prior written consent of the Board or its authorized representative, except to the extent required by an order of a court having jurisdiction or under subpoena from an appropriate government agency, in which event, Executive shall use his best efforts to consult with the Board prior to responding to any such order or subpoena, and except as required in the performance of his duties hereunder, Executive shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs, information regarding product development, marketing plans, sales plans, manufacturing plans, management organization information (including but not limited to data and other information relating to members of the Board or the Board of Directors of any of Employer's Affiliates or to management of Employer or any of its Affiliates), operating policies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating to Employer or any of its Affiliates or (b) - - that Employer or any of its Affiliates may receive belonging to suppliers, customers or others who do business with Employer or any of its Affiliates (collectively, "Confidential Information") to any third person unless such Confidential Information has been previously disclosed to the public or is in the public domain (other than by reason of Executive's breach of this Section 8). 9. Non-Competition. During the period of Executive's employment with --------------- Employer and, following any termination thereof, the period ending on the second anniversary of the Date of Termination (such periods, collectively, the "Restriction Period"), Executive shall not, directly or indirectly, become employed in an executive capacity by, engage in business with, serve as an agent or consultant to, or become a partner, member, principal or stockholder (other than a holder of less than 5% of the outstanding voting shares of any publicly held company) of, any Person that competes or has a reasonable potential for competing, anywhere in the world, with any part of the business of Employer or any of its Subsidiaries (as defined below). For purposes of this Section 9, the phrase employment "in an executive capacity" shall mean employment in any position in connection with which Executive has or reasonably would be viewed as having powers and authorities with respect to any other Person or any part of the business thereof that are substantially similar, with respect thereto, to the powers and authorities assigned to the Chairman, President or Chief Executive Officer or any superior executive officer of Employer in the By-Laws of Employer as in effect on the date hereof, a copy of the relevant portions of which has been delivered to Executive on or before the date hereof, and which Executive hereby confirms that he has reviewed. Notwithstanding the foregoing, in the event that, as a result of the operation of the provisions of Section 7(i), payments of Average Base Salary and Average Annual Bonus otherwise required to be paid to Executive for the entire Severance Period are paid to Executive for a period of less than two years following the 16 applicable Date of Termination, the Restriction Period shall expire as of the later of (i) the date such payments of Average Base Salary and Average Annual - Bonus cease (or, if Employer elects to pay Executive a lump sum amount pursuant to Section 7(f)(i), the date such payments would have ceased had such payments continued to be made in installments) and (ii) the first anniversary of the Date -- of Termination. 10. Non-Solicitation of Employees. During the Restriction Period, ----------------------------- Executive shall not, directly or indirectly, for his own account or for the account of any other Person anywhere in the world, (i) solicit for employment, - employ or otherwise interfere with the relationship of Employer or any of its Affiliates with any natural person throughout the world who is or was employed by or otherwise engaged to perform services for Employer or any of its Affiliates at any time during which Executive was employed by Employer (in the case of any such activity during such time) or during the six-month period preceding such solicitation, employment or interference (in the case of any such activity after the Date of Termination), other than any such solicitation or employment on behalf of Employer or any of its Affiliates during Executive's employment with Employer, or (ii) induce any employee of Employer or any of its -- Affiliates who is a member of management to engage in any activity which Executive is prohibited from engaging in under any of Sections 8, 9, 10 or 11 or to terminate his employment with Employer. 11. Non-Solicitation of Customers. During the Restriction Period, ----------------------------- Executive shall not, directly or indirectly, for his own account or for the account of any other Person anywhere in the world, solicit or otherwise attempt to establish any business relationship of a nature that is competitive with the business or relationship of Employer or any of its Affiliates with any Person throughout the world which is or was a customer, client or distributor of Employer or any of its Affiliates at any time during which Executive was employed by Employer (in the case of any such activity during such time) or during the twelve-month period preceding the Date of Termination (in the case of any such activity after the Date of Termination), other than any such solicitation on behalf of Employer or any of its Affiliates during Executive's employment with Employer. 12. Return of Documents. In the event of the termination of Executive's ------------------- employment for any reason, Executive shall deliver to Employer all of (a) the - property of each of Employer and its Affiliates and (b) the non-personal - documents and data of any nature and in whatever medium of each of Employer and its Affiliates, and he shall not take with him any such property, documents or data or any reproduction thereof, or any documents containing or pertaining to any Confidential Information. 17 13. Injunctive Relief with Respect to Covenants; Forum, Venue and ------------------------------------------------------------- Jurisdiction. Executive acknowledges and agrees that the covenants, obligations - ------------ and agreements of Executive contained in Sections 8, 9, 10, 11, 12 and 13 relate to special, unique and extraordinary matters and that a violation of any of the terms of such covenants, obligations or agreements will cause Employer irreparable injury for which adequate remedies are not available at law. Therefore, Executive agrees that Employer shall be entitled to an injunction, restraining order or such other equitable relief (without the requirement to post bond) as a court of competent jurisdiction may deem necessary or appropriate to restrain Executive from committing any violation of such covenants, obligations or agreements. These injunctive remedies are cumulative and in addition to any other rights and remedies Employer may have. Employer and Executive hereby irrevocably submit to the exclusive jurisdiction of the courts of Massachusetts and the Federal courts of the United States of America, in each case located in Boston, Massachusetts, in respect of the injunctive remedies set forth in this Section 13 and the interpretation and enforcement of Sections 8, 9, 10, 11, 12 and 13 insofar as such interpretation and enforcement relate to any request or application for injunctive relief in accordance with the provisions of this Section 13, and the parties hereto hereby irrevocably agree that (a) the sole and exclusive appropriate venue for any suit or - proceeding relating solely to such injunctive relief shall be in such a court, (b) all claims with respect to any request or application for such injunctive - relief shall be heard and determined exclusively in such a court, (c) any such - court shall have exclusive jurisdiction over the person of such parties and over the subject matter of any dispute relating to any request or application for such injunctive relief, and (d) each hereby waives any and all objections and - defenses based on forum, venue or personal or subject matter jurisdiction as they may relate to an application for such injunctive relief in a suit or proceeding brought before such a court in accordance with the provisions of this Section 13. Notwithstanding any other provision hereof, (i) Executive's obligations - under Sections 9, 10 and 11 are subject to timely payment by Employer of the amounts, if any, required to be paid to Executive pursuant to Section 7(f) (taking into account any reduction in such amounts permitted under Section 7(i)) and (ii) Employer's obligations to pay Executive any amount pursuant to Section -- 7(f) is subject to Executive's compliance with his obligations under Sections 9, 10 and 11. 14. Assumption of Agreement. Employer shall require any Successor ----------------------- thereto, by agreement in form and substance reasonably satisfactory to Executive, to expressly assume and agree to perform this Amended Agreement in the same manner and to the same extent that Employer would be required to perform it if no such succession had taken place. 18 15. Entire Agreement; Termination of Prior Agreement. This Amended ------------------------------------------------ Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof. All prior correspondence and proposals (including but not limited to summaries of proposed terms) and all prior promises, representations, understandings, arrangements and agreements relating to such subject matter (including but not limited to those made to or with Executive by any other Person and those contained in the Employment Agreement, the Prior Agreement or any other prior employment, consulting or similar agreement entered into by Executive and Employer or any predecessor thereto or Affiliate thereof) are merged herein and superseded hereby. Executive and Employer each acknowledges and agrees that, subject to the consummation of, and effective as of effective time of, the Merger, the Prior Agreement is hereby terminated in its entirety and shall be of no further force or effect, without any payment or other consideration to or in respect of Executive. 16. Indemnification. Employer hereby agrees that, notwithstanding the --------------- fact that Employer is a Massachusetts corporation, Employer shall indemnify and hold harmless Executive to the fullest extent permitted by Delaware law, as if Employer were a Delaware corporation, from and against any and all liabilities, costs, claims and expenses, including all costs and expenses incurred in defense of litigation (including attorneys' fees), arising out of the employment of Executive hereunder, it being understood that there shall be no indemnification in respect of any claim arising out of or based upon Executive's gross negligence or willful misconduct. Costs and expenses incurred by Executive in defense of such litigation (including attorneys' fees) shall be paid by Employer in advance of the final disposition of such litigation upon receipt by Employer of (a) a written request for payment, (b) appropriate documentation evidencing - - the incurrence, amount and nature of the costs and expenses for which payment is being sought, and (c) an undertaking adequate under Massachusetts law made by or - on behalf of Executive to repay the amounts so paid if it shall ultimately be determined that Executive is not entitled to be indemnified by Employer under this Amended Agreement, including but not limited to as a result of such exception. 17. Miscellaneous. ------------- (a) Binding Effect; Assignment. This Amended Agreement shall be binding on -------------------------- and inure to the benefit of Employer, and its successors and permitted assigns. This Amended Agreement shall also be binding on and inure to the benefit of Executive and his heirs, executors, administrators and legal representatives. This Amended Agreement shall not be assignable by any party hereto without the prior written consent of the other, except as provided pursuant to this Section 17(a). Employer may effect such an assignment without prior written approval of Executive upon the transfer of all or substantially all of its business and/or assets (by whatever means), provided that the -------- 19 Successor to Employer shall expressly assume and agree to perform this Amended Agreement in accordance with the provisions of Section 14. (b) Governing Law. This Amended Agreement shall be governed by and ------------- construed in accordance with the laws of Massachusetts without reference to principles of conflicts of laws. (c) Taxes. Employer may withhold from any payments made under this Amended ----- Agreement all applicable taxes, including but not limited to income, employment and social insurance taxes, as shall be required by law. (d) Amendments. No provision of this Amended Agreement may be modified, ---------- waived or discharged unless such modification, waiver or discharge is approved by the Board or a Person authorized thereby and is agreed to in writing by Executive. No waiver by any party hereto at any time of any breach by any other party hereto of, or compliance with, any condition or provision of this Amended Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No waiver of any provision of this Amended Agreement shall be implied from any course of dealing between or among the parties hereto or from any failure by any party hereto to assert its rights hereunder on any occasion or series of occasions. (e) Severability. In the event that any one or more of the provisions of ------------ this Amended Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. (f) Notices. Any notice or other communication required or permitted to be ------- delivered under this Amended Agreement shall be (i) in writing, (ii) delivered - -- personally, by courier service or by certified or registered mail, first-class postage prepaid and return receipt requested, (iii) deemed to have been received --- on the date of delivery or, if so mailed, on the third business day after the mailing thereof, and (iv) addressed as follows (or to such other address as the -- party entitled to notice shall hereafter designate in accordance with the terms hereof): (A) If to Employer, to it at: Dynatech Corporation Corporate Headquarters 3 New England Executive Park Burlington, MA 01803 Attention: General Counsel --------- 20 (C) if to Executive, to him at his residential address as currently on file with Employer. Copies of any notices or other communications given under this Amended Agreement shall also be given to: Clayton, Dubilier & Rice, Inc. 375 Park Avenue New York, New York 10152 Attention: --------- Joseph L. Rice, III and Debevoise & Plimpton 875 Third Avenue New York, New York 10022 Attention: --------- Franci J. Blassberg, Esq. and Hale and Dorr LLP 60 State Street Boston, Massachusetts 02109 Attention: --------- Peter Tarr, Esq. (g) Voluntary Agreement. Executive represents that he is entering ------------------- into this Amended Agreement voluntarily and that his employment hereunder and compliance with the terms and conditions of this Amended Agreement will not conflict with or result in the breach by him of any agreement to which he is a party or by which he may be bound. (h) Counterparts. This Amended Agreement may be executed in ------------ counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 21 (i) Headings. The section and other headings contained in this -------- Amended Agreement are for the convenience of the parties only and are not intended to be a part hereof or to affect the meaning or interpretation hereof. (k) Certain Definitions. ------------------- "Affiliate": with respect to any Person, means any other Person that, --------- directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with the first Person, including but not limited to a Subsidiary of the first Person, a Person of which the first Person is a Subsidiary, or another Subsidiary of a Person of which the first Person is also a Subsidiary. "Control": with respect to any Person, means the possession, directly ------- or indirectly, severally or jointly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities, by contract or credit arrangement, as trustee or executor, or otherwise. "Person": any natural person, firm, partnership, limited liability ------ company, association, corporation, company, trust, business trust, governmental authority or other entity. "Subsidiary": with respect to any Person, each corporation or other ---------- Person in which the first Person owns or Controls, directly or indirectly, capital stock or other ownership interests representing 50% or more of the combined voting power of the outstanding voting stock or other ownership interests of such corporation or other Person. 22 "Successor": of a Person means a Person that succeeds to the first --------- Person's assets and liabilities by merger, liquidation, dissolution or otherwise by operation of law, or a Person to which all or substantially all the assets and/or business of the first Person are transferred. IN WITNESS WHEREOF, Employer has duly executed this Amended Agreement by its authorized representative, and Executive has hereunto set his hand, in each case effective as of the date first above written. DYNATECH CORPORATION By: /s/ Allan M. Kline ---------------------- Name: Allan M. Kline Title: Chief Financial Officer Executive: /s/ John F. Reno ------------------------- Name: John F. Reno 23 EX-10.2 4 EMPLOYMENT AGREEMENT BETWEEN CO & A. KLINE AMENDED AND RESTATED EMPLOYMENT AGREEMENT This AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into this 1st day of November, 1998, by and between Dynatech Corporation, a Massachusetts corporation ("Employer"), and Allan M. Kline ("Executive"). W I T N E S S E T H : WHEREAS, Executive is currently employed by Employer as its Corporate Vice President-Chief Financial Officer; WHEREAS, pursuant and subject to the terms of the Agreement and Plan of Merger, dated as of December 20, 1997 (the "Merger Agreement"), by and between Employer and CDRD Merger Corporation, a Delaware corporation ("MergerCo"), Employer will be merged with and into MergerCo (the "Merger") and Employer will be the surviving corporation to the Merger; WHEREAS, Executive and Employer are currently parties to an Amended and Restated Employment Agreement, dated as of May 21, 1998 (the "Prior Agreement") which sets forth the terms and conditions of Executive's employment with Employer following the Merger; WHEREAS, Employer wishes to secure the continued services of Executive and Executive desires to accept such continued employment, in each case, on the terms and conditions set forth herein; WHEREAS, Employer and Executive wish to amend and restate the Prior Agreement in its entirety, as set forth herein (as so amended and restated, the "Amended Agreement"); WHEREAS, Employer and Executive acknowledge and agree that Executive has had and will continue to have a prominent role in the management of the business, and the development of the goodwill, of Employer and its Affiliates (as defined below) and has established and developed and will continue to establish and develop relations and contacts with the principal customers and suppliers of Employer and its Affiliates in the United States, Europe, the Pacific Rim and the rest of the world, all of which constitute valuable goodwill of, and could be used by Executive to compete unfairly with, Employer and its Affiliates; WHEREAS, (i) in the course of his employment with Employer, Executive - has obtained and will continue to obtain confidential and proprietary information and trade secrets concerning the business and operations of Employer and its Affiliates in the United States, Europe, the Pacific Rim and the rest of the world that could be used to compete unfairly with Employer and its Affiliates; (ii) the covenants and restrictions contained in Sections 8 through -- 13, inclusive, are intended to protect the legitimate interests of Employer and its Affiliates in their respective goodwill, trade secrets and other confidential and proprietary information; and (iii) Executive desires to be --- bound by such covenants and restrictions; NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises contained herein and for other good and valuable consideration, Employer and Executive hereby agree to amend and restate the Employment Agreement as follows: 1. Agreement to Continue Employment. Upon the terms and subject to --------------------------------- the conditions of this Amended Agreement, Employer hereby continues the employment of Executive, and Executive hereby accepts such continued employment by Employer. 2. Term; Position and Responsibilities. ----------------------------------- (a) Term of Employment. Unless Executive's employment shall sooner ------------------ terminate pursuant to Section 7, Employer shall employ Executive for a term commencing on the date of the consummation of the Merger (the "Commencement Date") and ending on the fifth anniversary of the Commencement Date (the "Initial Term"). Effective upon the expiration of the Initial Term and of each Additional Term (as defined below), Executive's employment hereunder shall be deemed to be automatically extended, upon the same terms and conditions, for an additional period of one year (each, an "Additional Term"), in each such case, commencing upon the expiration of the Initial Term or the then current Additional Term, as the case may be, unless Employer, at least 60 days prior to the expiration of the Initial Term or such Additional Term, shall give written notice (a "Non-Extension Notice") to Executive of its intention not to extend the Employment Period (as defined below) hereunder, provided that a Non- -------- Extension Notice shall not constitute a notice to Executive of the termination of his employment by Employer unless such notice specifically provides for such termination of employment and the specific date thereof. The period during which Executive is employed pursuant to this Amended Agreement, including any extension thereof in accordance with the preceding sentence, shall be referred to as the "Employment Period". 2 (b) Position and Responsibilities. During the Employment Period, ----------------------------- Executive shall serve as Corporate Vice President-Chief Financial Officer of Employer and have such duties and responsibilities as are customarily assigned to individuals serving in such position and such other duties consistent with Executive's title and position as the Board of Directors of Employer (the "Board") specifies from time to time. Executive shall devote all of his skill, knowledge and working time (except for (i) vacation time as set forth in Section - 6(c) and absence for sickness or similar disability and (ii) to the extent that -- it does not interfere with the performance of Executive's duties hereunder, (A) - such reasonable time as may be devoted to service on boards of directors of other corporations and entities, subject to the provisions of Section 9, and the fulfillment of civic responsibilities and (B) such reasonable time as may be - necessary from time to time for personal financial matters) to the conscientious performance of the duties and responsibilities of such position. During the Employment Period, Employer shall use its reasonable best efforts to cause Executive to be nominated and elected to serve as a member of the Board of Directors, without additional compensation. 3. Base Salary. As compensation for the services to be performed by ----------- Executive during the Employment Period, Employer shall pay Executive a base salary at an annualized rate of $225,000, payable in installments on Employer's regular payroll dates. The Board shall review Executive's base salary annually during the period of his employment hereunder and, in its sole discretion, the Board may increase (but may not decrease) such base salary from time to time based upon the performance of Executive, the financial condition of Employer, prevailing industry salary levels and such other factors as the Board shall consider relevant. (The annual base salary payable to Executive under this Section 3, as the same may be increased from time to time and without regard to any reduction therefrom in accordance with the next sentence, shall hereinafter be referred to as the "Base Salary".) The Base Salary payable under this Section 3 shall be reduced to the extent that Executive elects to defer such Base Salary under the terms of any deferred compensation, savings plan or other voluntary deferral arrangement that may be maintained or established by Employer. 4. Incentive Compensation Arrangements. ----------------------------------- (a) Annual Incentive Compensation. During the Employment Period, ----------------------------- Employer shall maintain an annual incentive compensation program for its senior executives in which Executive shall be entitled to participate in accordance with the terms thereof as in effect from time to time, at a level commensurate with his position and duties with Employer, which program shall be operated in accordance with Employer's customary corporate practices and shall provide for an annual bonus based on such performance targets as may be established from time to time by the Compensation Committee of the Board. 3 (b) Roll-Over of Certain Options; Retention of Equity. ------------------------------------------------- (i) Prior to the Merger, Executive was the beneficial owner of 2,338 shares (together with the rights associated therewith pursuant to the Shareholders' Rights Agreement, dated as of February 16, 1989, as amended and restated as of March 12, 1990, the "Previously Owned Shares") of the common stock, par value $.20 per share, of Employer (the "Prior Common Stock") and held options (the "Prior Options") to purchase 66,000 additional shares of Prior Common Stock. (ii) At the effective time of the Merger (the "Effective Time"), all of the Previously Owned Shares were converted into the right to receive the Merger Consideration, within the meaning and in accordance with the terms of the Merger Agreement. (iii) At the Effective Time, each Prior Option was automatically converted into a fully vested and exercisable option (the "Recapitalized Option") to purchase a number of shares (such shares, the "Recapitalized Option Shares") of common stock, par value $.20 per share, of the corporation surviving the Merger (the "Recapitalized Common Stock") equal to the sum of: (x) the quotient of (I) the product of (A) the number of shares of Prior Common - Stock subject to such Prior Option immediately prior to the Effective Time, multiplied by (B) the cash consideration per - share of Prior Common Stock paid pursuant to the Merger Agreement to holders of Prior Common Stock, divided by (II) the price per share of Recapitalized Common Stock paid by the CD&R Fund (as defined below) for the shares of MergerCo which were exchanged for the shares of the Company's Recapitalized Common Stock upon the consummation of the Merger, and (y) the product of (I) the number of shares of Prior Common Stock - subject to such Prior Option immediately prior to the Effective Time, multiplied by (II) the number of shares of Recapitalized Common Stock -- transferred pursuant to the Merger Agreement to holders of Prior Common Stock for each such share of Prior Common Stock. 4 Each Recapitalized Option shall have an exercise price per Recapitalized Option Share equal to the quotient of: (x) the aggregate exercise price for all shares of Prior Common Stock subject to the corresponding Prior Option, divided by (y) the number of Recapitalized Option Shares subject to such Recapitalized Option immediately following the conversion thereof contemplated hereby. Each of the Company and Executive agree that the foregoing adjustment in the number of shares and the exercise prices applicable in respect of Recapitalized Options is intended to comply with the procedures for adjusting the number of shares subject to stock options (and the corresponding exercise prices) in a corporate transaction under Section 424 of the Internal Revenue Code of 1986, as amended (the "Code") and the regulations thereunder, regardless of whether such Section is applicable to such Recapitalized Options. The method used to determine fair market value of the Company's stock for purposes of such adjustment as a result of the Merger was the arm's length negotiated value assigned to the Recapitalized Common Stock in connection with the Merger (the "Merger Method"), which is one of several acceptable valuation methods expressly set forth in Treas. Reg. '1.425-1(b)(7). (iv) Each Nonqualified Recapitalized Option (as defined below) and each Disqualified Recapitalized Option (as defined below) shall provide that it shall expire on the normal expiration date specified in the option award agreement evidencing the corresponding Prior Option that applies if Executive's employment continues at least until such date (such date, the "Original Termination Date"), provided that (x) in the event of the termination of - Executive's employment with Employer prior to an applicable Original Termination Date as a result of Executive's death, Executive's Disability (as defined below), a termination of Executive's employment by Employer Without Cause (as defined below) or a termination of Executive's employment by Executive for Good Reason (as defined below), each then outstanding Nonqualified Recapitalized Option and Disqualified Recapitalized Option shall expire on the earlier of (I) - its Original Termination Date and (II) the later of (A) the six month -- - anniversary of the date of the expiration of any initial lock-up period imposed on sales of Recapitalized Common Stock in connection with the first underwritten public offering of any shares of Recapitalized Common Stock led by one or more underwriters, at least one of which is of nationally 5 recognized standing (such expiration date, the "Lock-Up Expiration Date"), and (B) the first anniversary of the applicable Date of Termination (as defined - below) and (y) in the event of the termination of Executive's employment with - Employer prior to such Original Termination Date for any reason other than the reasons described in the immediately preceding clause (x), each then outstanding Nonqualified Recapitalized Option and Disqualified Recapitalized Option shall expire on the earliest of (I) its Original Termination Date, (II) the later of - -- (1) the 90th day following the Lock-Up Expiration Date and (2) the 30th day - - following the applicable Date of Termination and (III) the first anniversary of --- the applicable Date of Termination. Each Recapitalized Vested ISO and each Recapitalized Accelerated ISO that is not a Disqualified Recapitalized Option shall provide that it shall expire on the expiration date specified in the option award agreement evidencing the corresponding Prior ISO, including without limitation, any such early expiration date applicable in the case of a termination of Executive's employment. For purposes of this Section 4(b)(iv), the following terms shall have the meanings set forth below. (A) "Disqualified Recapitalized Option" means those Recapitalized Accelerated ISOs having an aggregate exercise price exceeding the excess of (1) $100,000 over - (2) the aggregate exercise price of all Recapitalized Vested - ISOs, the corresponding Prior ISO of which became vested and exercisable in calendar year 1998 prior to the Effective Time (B) "Nonqualified Recapitalized Option" means each Recapitalized Option that is a successor option to a Prior Option that, immediately prior to the Effective Time, is intended to be a nonqualified stock option. (C) "Prior ISO" means each Prior Option that, immediately prior to the Effective Time, is intended to qualify as an "incentive stock option" under section 422 of the Code. 6 (D) "Recapitalized Accelerated ISO" means each Recapitalized Option that is a successor option to a Prior ISO that becomes vested solely as a result of the acceleration of the vesting of Prior Options in connection with, and as of the Effective Time of, the Merger. (E) "Recapitalized Vested ISO" means each Recapitalized Option that is a successor option to a Prior ISO that became vested and exercisable prior to the Effective Time and not in connection with the Merger. (v) Executive, Employer and Clayton, Dubilier & Rice Fund V Limited Partnership (the "CD&R Fund") shall enter into a separate agreement (the "Ancillary Agreement"), to become effective as of the Effective Time, that will provide, among other things, that: (A) during the Employment Period, the CD&R Fund will vote its shares of Recapitalized Common Stock in favor of the election of Executive to serve as a member of the Board; (B) Executive shall not be permitted, at any time during his employment with Employer, to sell, transfer or otherwise dispose of any shares of Recapitalized Common Stock beneficially owned by him (including any Recapitalized Option Shares), other than (I) transfers upon death to - Executive's estate, (II) transfers to family trusts or partnerships for -- estate planning purposes or (III) de minimis transfers during the --- Employment Period not exceeding, in the aggregate, 25% of the sum of the aggregate shares of Recapitalized Common Stock beneficially owned by Executive as of the Commencement Date and the aggregate Recapitalized Option Shares subject to the Recapitalized Options held by Executive as of the Commencement Date, provided, in the case of any transfer pursuant to -------- the foregoing clause (I) or (II), that the executor of Executive's estate or the trustee or general partner of any such trust or partnership, as applicable, shall agree, in form and substance reasonably satisfactory to Employer, to be bound by all of the provisions of the Ancillary Agreement; (C) following any termination of Executive's employment with Employer, Employer and the CD&R Fund shall have successive rights to repurchase any Recapitalized Options and/or Recapitalized Option Shares then beneficially owned or held by Executive for a purchase price equal to the then fair market value of the Recapitalized Option Shares or the Recapitalized Option Shares then subject to the Recapitalized Options, as applicable (reduced by the option exercise price in the case of a purchase of Recapitalized Options), such fair market value to be determined in good faith by the Board on the basis of an independent valuation 7 of the Recapitalized Common Stock, provided, that the determination of such -------- fair market value will not give effect to (x) any restrictions on transfer - of such shares, (y) the fact that such shares are not registered for resale - by Executive under the Securities Act of 1933, as amended, or (z) the fact - that such shares would represent a minority interest in Employer; (D) in the event of certain qualifying sales of Recapitalized Common Stock by the CD&R Fund, Executive shall have the right to sell a pro rata portion of the shares of Recapitalized Common Stock then owned by him, on the same terms and conditions as the CD&R Fund; and (E) in the event of the sale by the CD&R Fund of substantially all of the Recapitalized Common Stock then beneficially owned by it (other than any such sale to an Affiliate of the CD&R Fund), the CD&R Fund shall have the right to require Executive to sell the same percentage of the Recapitalized Common Stock then beneficially owned by him as will be sold by the CD&R Fund, on the same terms and conditions as the CD&R Fund, and Employer shall have the right to cause any Recapitalized Options then held by Executive to be canceled in exchange for a payment in respect of each Recapitalized Option Share covered by such Recapitalized Options equal to the excess, if any, of the price per share of Recapitalized Common Stock paid to holders of Recapitalized Common Stock in connection with such sale over the applicable option exercise price. (F) The transfer restrictions described in the foregoing subparagraph (B) shall terminate on the earlier of (I) the fifth anniversary of the - Commencement Date and (II) the Lock-Up Expiration Date. The rights and -- obligations of Executive and Employer under the foregoing subparagraphs (C), (D) and (E) of this Section 4(b)(v) shall terminate on the closing date following the effective date of the first registration statement filed under the Securities Act by Employer after the Commencement Date with respect to an underwritten public offering of any shares of Employer's capital stock led by one or more underwriters, at least one of which is of nationally recognized standing. (c) In the event that, due to the adjustment provided in this Section 4 with respect to the number of shares of the Recapitalized Common Stock subject to Recapitalized Options, the amount of Covered Federal Taxes (as defined below) payable by Executive solely in respect of the Recapitalized Options exceeds the amount of such Covered Federal Taxes that would have been incurred by Executive solely in respect of the Recapitalized Options had the proper adjustment applicable to such Recapitalized Options been finally determined for Federal income tax purposes to be a method of 8 adjustment other than the Merger Method and, as a result, the amount of Covered Federal Taxes payable by Executive exceeds the amount of such Covered Federal Taxes otherwise payable by Executive, to be determined after first taking into account the provisions of Section 7(i)(i)-(v) hereof (such excess hereinafter referred to as the "Excess Liability"), the Company shall, in addition to any other amounts payable to Executive under this Agreement, pay to Executive an amount equal to the sum of (i) such Excess Liability and (ii) any and all - -- Covered Federal Taxes and any other Federal taxes and any state or local income and employment taxes, if any, incurred by Executive by reason of the payment required to be made under this Section 4(c). For purposes of this Section 4(c), Covered Federal Taxes shall mean any tax imposed on Executive under any provision of the Code as in effect on the date hereof (or any successor provision thereto), other than any income, employment, estate or gift tax. 5. Employee Benefits. During the Employment Period, Executive shall ----------------- be entitled to participate in all of Employer's profit sharing, pension, savings, deferred compensation, supplemental savings, life, medical, dental and disability insurance plans, as the same may be amended and in effect from time to time, applicable to senior executives of Employer, provided that Executive -------- shall not be entitled to participate in any severance plan of Employer or otherwise receive any severance benefits under any other type of plan. The benefits referred to in this Section 5 shall be provided to Executive on a basis that is commensurate with Executive's position and duties with Employer hereunder and shall be substantially comparable, in the aggregate, to the benefits (exclusive of severance and equity or other incentive compensation benefits) provided to Executive immediately prior to the Commencement Date. 6. Perquisites and Expenses. ------------------------ (a) General. During the Employment Period, Executive shall be ------- entitled to participate in all special benefit or perquisite programs generally available from time to time to senior executives of Employer, including Employer's programs providing for reimbursement of certain automobile expenses, club social dues and fees for tax return preparation, financial planning and investment advisory services, on the terms and conditions in effect from time to time under each such program. (b) Business Travel, Lodging, etc. Employer shall reimburse ------------------------------ Executive for reasonable travel, lodging, meal and other reasonable expenses incurred by him in connection with his performance of services hereunder upon submission of evidence, satisfactory to Employer, of the incurrence and purpose of each such expense and otherwise in accordance with Employer's business travel reimbursement policy applicable to its senior executives as in effect from time to time. 9 (c) Vacation. During the Employment Period, Executive shall be -------- entitled to a number of weeks of paid vacation, without carryover accumulation, determined in accordance with the terms of Employer's vacation policy applicable to senior executives as in effect from time to time. As soon as reasonably practicable following the Commencement Date, Employer shall pay Executive a cash amount equal to $8,222, which shall be in full and complete satisfaction of all then unpaid vacation pay accrued by Executive with respect to periods of employment completed prior to November 30, 1997. 7. Termination of Employment. ------------------------- (a) Termination Due to Death or Disability. In the event that -------------------------------------- Executive's employment hereunder terminates due to death or is terminated by Employer due to Executive's Disability (as defined below), no termination benefits shall be payable to or in respect of Executive except as provided in Section 7(f)(ii). For purposes of this Amended Agreement, "Disability" shall mean a physical or mental disability that prevents the performance by Executive of his duties hereunder lasting (or likely to last, based on competent medical evidence presented to the Board) for a continuous period of six months or longer. The reasoned and good faith judgment of the Board as to Executive's Disability shall be based on such competent medical evidence as shall be presented to it by Executive or by any physician or group of physicians or other competent medical experts employed by Executive or Employer to advise the Board. (b) Termination by Employer for Cause. Executive's employment with --------------------------------- Employer may be terminated by Employer for Cause (as defined below), provided -------- that Executive shall be permitted to attend a meeting of the Board within 30 days after delivery to him of a Notice of Termination (as defined below) pursuant to this Section 7(b) to explain why he should not be terminated for Cause and, if following any such explanation by Executive, the Board determines that Employer does not have Cause to terminate Executive's employment, any such prior Notice of Termination delivered to Executive shall thereupon be withdrawn and of no further force or effect. "Cause" shall mean (i) the willful failure - of Executive substantially to perform his duties hereunder (other than any such failure due to Executive's physical or mental illness) or other willful and material breach by Executive of any of his obligations hereunder, after a written demand for substantial performance has been delivered, and a reasonable opportunity to cure has been given, to Executive by the Board, which demand identifies in reasonable detail the manner in which the Board believes that Executive has not substantially performed his duties or has breached his obligations, (ii) Executive's dishonesty or engaging in willful and serious -- misconduct, which misconduct has caused or is reasonably expected to result in direct or indirect material injury to Employer or any of its Affiliates or (iii) --- Executive's conviction of, or entering a plea of guilty or nolo contendere to, a ---- ---------- crime that constitutes a felony. 10 (c) Termination Without Cause. A termination "Without Cause" shall ------------------------- mean a termination of Executive's employment by Employer other than due to Disability as described in Section 7(a) or for Cause as described in Section 7(b). (d) Termination by Executive. Executive may terminate his employment ------------------------ for any reason. A termination of employment by Executive for "Good Reason" shall mean a termination by Executive of his employment with Employer within 30 days following the occurrence, without Executive's consent, of any of the following events: (i) the assignment to Executive of (x) a title that is - - different from, and a diminution from, the title specified in Section 2 or (y) - duties that are significantly different from, and that result in a substantial diminution of, the duties that he is to assume on the Commencement Date, (ii) -- the failure of Employer to obtain the assumption of this Amended Agreement by any Successor (as defined below) to Employer as contemplated by Section 14, (iii) a reduction in the rate of Executive's Base Salary, (iv) a material --- -- reduction in the aggregate level of employee and executive benefits provided to Executive pursuant to Section 5 hereof, (v) Employer's delivery to Executive of - a Non-Extension Notice or (vi) a relocation of Executive's principal place of -- business to a location beyond a radius of 30 miles from the location of such place of business on the Commencement Date, provided that, within 30 days -------- following the occurrence of any of the events set forth therein, Executive shall have delivered written notice to Employer of his intention to terminate his employment for Good Reason, which notice specifies in reasonable detail the circumstances claimed to give rise to Executive's right to terminate his employment for Good Reason, and Employer shall not have cured such circumstances to the reasonable satisfaction of Executive. (e) Notice of Termination. Any termination of Executive's employment --------------------- hereunder by Employer pursuant to Section 7(a), 7(b) or 7(c), or by Executive pursuant to Section 7(d), shall be communicated by a written Notice of Termination addressed to the other. A "Notice of Termination" shall mean a notice stating that Executive's employment with Employer has been or will be terminated and setting forth the provisions hereof pursuant to which such employment has or will be terminated. (f) Payments Upon Certain Terminations. ---------------------------------- 11 (i) In the event of a termination of Executive's employment by Employer Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, Employer shall pay to Executive his full Base Salary through the Date of Termination and an amount equal to the pro rata amount of annual incentive compensation for the portion of the fiscal year preceding the Date of Termination that would have been payable to Executive pursuant to Section 4(a) if he had remained employed for the entire fiscal year, determined on the basis of the actual performance achieved by Employer through the Date of Termination and the performance objectives established for such fiscal year, pro rated to reflect the calculation of such annual incentive compensation for the portion of the fiscal year preceding the Date of Termination. In addition, in the event of any such termination, Employer shall pay or, in the case of the Continued Benefits (as defined below), provide to Executive (or, following his death, to Executive's designated beneficiary or beneficiaries), as liquidated damages, (A) his Average Base Salary (as defined below), which shall be payable in installments on Employer's regular payroll dates, for the period beginning on the Date of Termination (as defined below) and ending on the second anniversary of the Date of Termination (such period, the "Severance Period") and (B) on the last day of each calendar month included in the Severance Period, an amount equal to one-twelfth of the Average Annual Bonus (as defined below); and (C) continued coverage for Executive and his eligible dependents under Employer's medical insurance plans referred to in Section 5 (the "Continued Benefits") during the period commencing on the Termination Date and ending on the earlier of (i) Executive's 65th birthday and (ii) the date of - -- Executive's death, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of Employer under the terms of such plans as in effect from time to time; provided that Employer may, at any time, pay to Executive, in a single lump sum - -------- and in satisfaction of Employer's obligations under clauses (A) and (B) of this Section 7(f)(i), an amount equal to the present value (as determined by Employer using a discount rate equal to the then prevailing applicable federal short-term rate under section 1274(d) of the Internal Revenue Code of 1986, as amended) of the sum of the installments of the Average Base Salary and Average Annual Bonus then remaining to be paid to Executive pursuant to clauses (A) and (B) above. 12 Executive shall not have a duty to mitigate the costs to Employer under this Section 7(f)(i), except that (i) payments of Base Salary and Average - Annual Bonus will be reduced, but not below zero, by the amount of any compensation earned by Executive (whether paid currently or deferred) during any portion of the Severance Period from any subsequent employer or other Person (as defined in Section 17(k) below) for which Executive performs services, including but not limited to consulting services, and (ii) Continued Benefits shall be -- reduced or canceled if comparable medical benefit coverage is provided or offered to Executive by any subsequent employer or other Person for which Executive performs services, including but not limited to consulting services, at any time after the Date of Termination. The term "Average Annual Bonus" means the average of the annual bonuses paid to Executive pursuant to Employer's annual incentive compensation plan for each of the three fiscal years of Employer ending immediately prior to the Date of Termination or, if fewer, each of such fiscal years during which Executive was at any time employed by Employer and the term "Average Base Salary" means the average of the annual base salary rate of Executive in effect immediately prior to the Date of Termination and as of the last day of each of the two fiscal years of Employer ending immediately prior to the Date of Termination or, if fewer, each of such fiscal years during which Executive was at any time employed by Employer; provided that if Executive's employment is -------- terminated by Executive pursuant to clause (iii) of the definition of Good Reason, Executive's annual base salary rate in effect immediately prior to any reduction thereof shall be substituted for Executive's annual base salary rate in effect immediately prior to the Date of Termination in calculating the Average Base Salary. (ii) If Executive's employment shall terminate upon his death or Disability or if Employer shall terminate Executive's employment for Cause or Executive shall terminate his employment without Good Reason during the Employment Period, Employer shall pay Executive his full Base Salary through the Date of Termination and, in the case of any such termination upon Executive's death or Disability, Executive shall be entitled to receive (x) a cash payment - equal to the pro rata amount of annual incentive compensation for the portion of the fiscal year preceding the Date of Termination (exclusive of any time between the onset of a physical or mental disability that prevents the performance by Executive of his duties hereunder and the resulting Date of Termination) that would have been payable to Executive pursuant to Section 4(a) if he had remained employed for the entire fiscal year, determined on the basis of the actual performance achieved by Employer through the Date of Termination and the performance objectives established for such fiscal year, pro rated to reflect the calculation of such annual incentive compensation for the portion of the fiscal year preceding the Date of Termination and (y) such death or Disability - benefits, as applicable, as are provided under the terms of any employee and executive death benefit and disability plans and programs referred to in Section 5 or 6(a). 13 (iii) Except as specifically set forth in this Section 7(f), Executive shall be entitled to receive all amounts payable and benefits accrued under any otherwise applicable plan, policy, program or practice of Employer in which Executive was a participant during his employment with Employer (including, without limitation, Employer's 401(k) Savings Plan and Supplemental 401(k) Savings Plan) in accordance with the terms thereof, provided that Executive shall not be entitled to receive any payments or benefits under any such plan, policy, program or practice providing any bonus or incentive compensation or severance compensation or benefits (and the provisions of this Section 7(f) shall supersede the provisions of any such plan, policy, program or practice). (g) Date of Termination. As used in this Amended Agreement, the term ------------------- "Date of Termination" shall mean (i) if Executive's employment is terminated by - his death, the date of his death, (ii) if Executive's employment is terminated -- by Employer for Cause, the date on which Notice of Termination is given as contemplated by Section 7(e) or, if later, the date of termination specified in such Notice, and (iii) if Executive's employment is terminated by Employer --- Without Cause, due to Executive's Disability or by Executive for any reason, the date that is 30 days after the date on which Notice of Termination is given as contemplated by Section 7(e) or, if no such Notice is given, immediately upon the termination of Executive's employment. (h) Resignation upon Termination. Effective as of any Date of ---------------------------- Termination under this Section 7 or otherwise as of the date of Executive's termination of employment with Employer, Executive shall resign, in writing, from all Board memberships and other positions then held by him with Employer and its Affiliates. (i) Limit on Payments by the Company. -------------------------------- (i) Notwithstanding any provision of this Amended Agreement other than Section 7(i)(vi) below, in the event that any amount or benefit paid, payable or distributed to Executive pursuant to this Amended Agreement which is a parachute payment as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), taken together with any amounts or benefits otherwise paid, payable or distributed to Executive by Employer or any Affiliate thereof which are parachute payments as defined in Section 280G of the Code (collectively, the "Covered Payments"), would be an "excess parachute payment" as defined in Section 280G of the Code, and would thereby subject Executive to the tax (the "Excise Tax") imposed under Section 4999 of the Code (or any similar tax that may hereafter be imposed), the provisions of this Section 7(i) shall apply to determine the amounts payable to Executive pursuant to Section 7(f) of this Amended Agreement. 14 (ii) Immediately following delivery of any Notice of Termination, the Company shall notify Executive of the aggregate present value of all termination benefits to which he would be entitled under this Amended Agreement and any other plan, program or arrangement as of the projected Date of Termination, together with the projected maximum payments, determined as of such projected Date of Termination that could be paid without Executive being subject to the Excise Tax. (iii) If the aggregate value of all parachute payments to be paid or provided to Executive under this Amended Agreement and any other plan, agreement or arrangement with Employer or any Affiliate thereof exceeds the amount of parachute payments which can be paid to Executive without Executive incurring an Excise Tax, then the amounts payable to Executive under Section 7(f) shall be reduced (but not below zero) to the maximum amount which may be paid hereunder without Executive becoming subject to such an Excise Tax (such amount to be referred to as the "Payment Cap"). In the event that Executive receives reduced payments and benefits hereunder, Executive shall have the right to designate which of the payments and benefits otherwise provided for in Section 7(f) of this Amended Agreement he will receive in connection with the application of the Payment Cap. (iv) For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) (x) whether any amount or benefit paid, payable or distributed to Executive is a "parachute payment" within the meaning of Section 280G of the Code, and (y) whether there are "parachute payments" in excess of the "base amount" (as defined under Section 280G(b)(3) of the Code) shall be determined in good faith by Employer's independent certified public accountants or tax counsel selected by such accountants (the "Accountants"), provided however that payments or benefits made or provided to Executive pursuant to Sections 3 through 6 of this Amended Agreement in respect of periods of Executive's employment with Employer (other than any amount attributable to the acceleration of any Prior Options) shall not be treated as parachute payments, and (B) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. 15 (v) If Executive receives reduced payments and benefits as a result of the provisions of this Section 7(i) (or this Section 7(i) is determined not to be applicable to Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that, notwithstanding the good faith of Executive and Employer in applying the terms of this Amended Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to Executive or for his benefit are in an amount that would result in Executive's being subject to an Excise Tax, then any amounts actually paid to or on behalf of Executive which are treated as excess parachute payments shall be deemed for all purposes to be a loan to Executive made on the date of receipt of such excess payments, which Executive shall have an obligation to repay to Employer on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by Executive. If Executive receives reduced payments and benefits by reason of this Section 7(i) and it is established pursuant to a Final Determination that Executive could have received a greater amount without exceeding the Payment Cap, then Employer shall promptly thereafter pay Executive the aggregate additional amount which could have been paid without exceeding the Payment Cap, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the original payment due date to the date of actual payment by Employer. (vi) Notwithstanding anything else contained in this Section 7(i) to the contrary, nothing in this Section 7(i) shall be construed to limit the Company's obligation to make any payment to Executive with respect to any Excess Liability determined pursuant to Section 4(c) above. 8. Unauthorized Disclosure. During the period of Executive's ----------------------- employment with Employer and the ten year period following any termination of such employment, without the prior written consent of the Board or its authorized representative, except to the extent required by an order of a court having jurisdiction or under subpoena from an appropriate government agency, in which event, Executive shall use his best efforts to consult with the Board prior to responding to any such order or subpoena, and except as required in the performance of his duties hereunder, Executive shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs, information regarding product development, marketing plans, sales plans, manufacturing plans, management organization information (including but not limited to data and other information relating to members of the Board or the Board of Directors of any of Employer's Affiliates or to management of Employer or any of its Affiliates), 16 operating policies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) - relating to Employer or any of its Affiliates or (b) that Employer or any of its - Affiliates may receive belonging to suppliers, customers or others who do business with Employer or any of its Affiliates (collectively, "Confidential Information") to any third person unless such Confidential Information has been previously disclosed to the public or is in the public domain (other than by reason of Executive's breach of this Section 8). 9. Non-Competition. During the period of Executive's employment with --------------- Employer and, following any termination thereof, the period ending on the second anniversary of the Date of Termination (such periods, collectively, the "Restriction Period"), Executive shall not, directly or indirectly, become employed in an executive capacity by, engage in business with, serve as an agent or consultant to, or become a partner, member, principal or stockholder (other than a holder of less than 5% of the outstanding voting shares of any publicly held company) of, any Person that competes or has a reasonable potential for competing, anywhere in the world, with any part of the business of Employer or any of its Subsidiaries (as defined below). For purposes of this Section 9, the phrase employment "in an executive capacity" shall mean employment in any position in connection with which Executive has or reasonably would be viewed as having powers and authorities with respect to any other Person or any part of the business thereof that are substantially similar, with respect thereto, to the powers and authorities assigned to the Corporate Vice President-Chief Financial Officer or any superior executive officer of Employer in the By-Laws of Employer as in effect on the date hereof, a copy of the relevant portions of which has been delivered to Executive on or before the date hereof, and which Executive hereby confirms that he has reviewed. Notwithstanding the foregoing, in the event that, as a result of the operation of the provisions of Section 7(i), payments of Average Base Salary and Average Annual Bonus otherwise required to be paid to Executive for the entire Severance Period are paid to Executive for a period of less than two years following the applicable Date of Termination, the Restriction Period shall expire as of the later of (i) the date such payments of Average Base Salary and - Average Annual Bonus cease (or, if Employer elects to pay Executive a lump sum amount pursuant to Section 7(f)(i), the date such payments would have ceased had such payments continued to be made in installments) and (ii) the first -- anniversary of the Date of Termination. 10. Non-Solicitation of Employees. During the Restriction Period, ----------------------------- Executive shall not, directly or indirectly, for his own account or for the account of any other Person anywhere in the world, (i) solicit for employment, - employ or otherwise interfere with the relationship of Employer or any of its Affiliates with any natural person 17 throughout the world who is or was employed by or otherwise engaged to perform services for Employer or any of its Affiliates at any time during which Executive was employed by Employer (in the case of any such activity during such time) or during the six-month period preceding such solicitation, employment or interference (in the case of any such activity after the Date of Termination), other than any such solicitation or employment on behalf of Employer or any of its Affiliates during Executive's employment with Employer, or (ii) induce any -- employee of Employer or any of its Affiliates who is a member of management to engage in any activity which Executive is prohibited from engaging in under any of Sections 8, 9, 10 or 11 or to terminate his employment with Employer. 11. Non-Solicitation of Customers. During the Restriction Period, ----------------------------- Executive shall not, directly or indirectly, for his own account or for the account of any other Person anywhere in the world, solicit or otherwise attempt to establish any business relationship of a nature that is competitive with the business or relationship of Employer or any of its Affiliates with any Person throughout the world which is or was a customer, client or distributor of Employer or any of its Affiliates at any time during which Executive was employed by Employer (in the case of any such activity during such time) or during the twelve-month period preceding the Date of Termination (in the case of any such activity after the Date of Termination), other than any such solicitation on behalf of Employer or any of its Affiliates during Executive's employment with Employer. 12. Return of Documents. In the event of the termination of ------------------- Executive's employment for any reason, Executive shall deliver to Employer all of (a) the property of each of Employer and its Affiliates and (b) the non- - - personal documents and data of any nature and in whatever medium of each of Employer and its Affiliates, and he shall not take with him any such property, documents or data or any reproduction thereof, or any documents containing or pertaining to any Confidential Information. 13. Injunctive Relief with Respect to Covenants; Forum, Venue and ------------------------------------------------------------- Jurisdiction. Executive acknowledges and agrees that the covenants, obligations - ------------ and agreements of Executive contained in Sections 8, 9, 10, 11, 12 and 13 relate to special, unique and extraordinary matters and that a violation of any of the terms of such covenants, obligations or agreements will cause Employer irreparable injury for which adequate remedies are not available at law. Therefore, Executive agrees that Employer shall be entitled to an injunction, restraining order or such other equitable relief (without the requirement to post bond) as a court of competent jurisdiction may deem necessary or appropriate to restrain Executive from committing any violation of such covenants, obligations or agreements. These injunctive remedies are cumulative and in addition to any other rights and remedies Employer may have. Employer and Executive hereby 18 irrevocably submit to the exclusive jurisdiction of the courts of Massachusetts and the Federal courts of the United States of America, in each case located in Boston, Massachusetts, in respect of the injunctive remedies set forth in this Section 13 and the interpretation and enforcement of Sections 8, 9, 10, 11, 12 and 13 insofar as such interpretation and enforcement relate to any request or application for injunctive relief in accordance with the provisions of this Section 13, and the parties hereto hereby irrevocably agree that (a) the sole - and exclusive appropriate venue for any suit or proceeding relating solely to such injunctive relief shall be in such a court, (b) all claims with respect to - any request or application for such injunctive relief shall be heard and determined exclusively in such a court, (c) any such court shall have exclusive - jurisdiction over the person of such parties and over the subject matter of any dispute relating to any request or application for such injunctive relief, and (d) each hereby waives any and all objections and defenses based on forum, venue - or personal or subject matter jurisdiction as they may relate to an application for such injunctive relief in a suit or proceeding brought before such a court in accordance with the provisions of this Section 13. Notwithstanding any other provision hereof, (i) Executive's - obligations under Sections 9, 10 and 11 are subject to timely payment by Employer of the amounts, if any, required to be paid to Executive pursuant to Section 7(f) (taking into account any reduction in such amounts permitted under Section 7(i)) and (ii) Employer's obligations to pay Executive any amount -- pursuant to Section 7(f) is subject to Executive's compliance with his obligations under Sections 9, 10 and 11. 14. Assumption of Agreement. Employer shall require any Successor ----------------------- thereto, by agreement in form and substance reasonably satisfactory to Executive, to expressly assume and agree to perform this Amended Agreement in the same manner and to the same extent that Employer would be required to perform it if no such succession had taken place. 15. Entire Agreement; Termination of Prior Agreement. This Amended ------------------------------------------------ Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof. All prior correspondence and proposals (including but not limited to summaries of proposed terms) and all prior promises, representations, understandings, arrangements and agreements relating to such subject matter (including but not limited to those made to or with Executive by any other Person and those contained in the Employment Agreement, the Prior Agreement or any other prior employment, consulting or similar agreement entered into by Executive and Employer or any predecessor thereto or Affiliate thereof) are merged herein and superseded hereby. 19 Executive and Employer each acknowledges and agrees that, subject to the consummation of, and effective as of effective time of, the Merger, the Prior Agreement is hereby terminated in its entirety and shall be of no further force or effect, without any payment or other consideration to or in respect of Executive. 16. Indemnification. Employer hereby agrees that, notwithstanding --------------- the fact that Employer is a Massachusetts corporation, Employer shall indemnify and hold harmless Executive to the fullest extent permitted by Delaware law, as if Employer were a Delaware corporation, from and against any and all liabilities, costs, claims and expenses, including all costs and expenses incurred in defense of litigation (including attorneys' fees), arising out of the employment of Executive hereunder, it being understood that there shall be no indemnification in respect of any claim arising out of or based upon Executive's gross negligence or willful misconduct. Costs and expenses incurred by Executive in defense of such litigation (including attorneys' fees) shall be paid by Employer in advance of the final disposition of such litigation upon receipt by Employer of (a) a written request for payment, (b) appropriate - - documentation evidencing the incurrence, amount and nature of the costs and expenses for which payment is being sought, and (c) an undertaking adequate - under Massachusetts law made by or on behalf of Executive to repay the amounts so paid if it shall ultimately be determined that Executive is not entitled to be indemnified by Employer under this Amended Agreement, including but not limited to as a result of such exception. 17. Miscellaneous. ------------- (a) Binding Effect; Assignment. This Amended Agreement shall be -------------------------- binding on and inure to the benefit of Employer, and its successors and permitted assigns. This Amended Agreement shall also be binding on and inure to the benefit of Executive and his heirs, executors, administrators and legal representatives. This Amended Agreement shall not be assignable by any party hereto without the prior written consent of the other, except as provided pursuant to this Section 17(a). Employer may effect such an assignment without prior written approval of Executive upon the transfer of all or substantially all of its business and/or assets (by whatever means), provided that the -------- Successor to Employer shall expressly assume and agree to perform this Amended Agreement in accordance with the provisions of Section 14. (b) Governing Law. This Amended Agreement shall be governed by and ------------- construed in accordance with the laws of Massachusetts without reference to principles of conflicts of laws. 20 (c) Taxes. Employer may withhold from any payments made under this ----- Amended Agreement all applicable taxes, including but not limited to income, employment and social insurance taxes, as shall be required by law. (d) Amendments. No provision of this Amended Agreement may be ---------- modified, waived or discharged unless such modification, waiver or discharge is approved by the Board or a Person authorized thereby and is agreed to in writing by Executive. No waiver by any party hereto at any time of any breach by any other party hereto of, or compliance with, any condition or provision of this Amended Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No waiver of any provision of this Amended Agreement shall be implied from any course of dealing between or among the parties hereto or from any failure by any party hereto to assert its rights hereunder on any occasion or series of occasions. (e) Severability. In the event that any one or more of the provisions ------------ of this Amended Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. (f) Notices. Any notice or other communication required or permitted ------- to be delivered under this Amended Agreement shall be (i) in writing, (ii) - -- delivered personally, by courier service or by certified or registered mail, first-class postage prepaid and return receipt requested, (iii) deemed to have --- been received on the date of delivery or, if so mailed, on the third business day after the mailing thereof, and (iv) addressed as follows (or to such other -- address as the party entitled to notice shall hereafter designate in accordance with the terms hereof): (A) If to Employer, to it at: Dynatech Corporation Corporate Headquarters 3 New England Executive Park Burlington, MA 01803 Attention: General Counsel --------- (C) if to Executive, to him at his residential address as currently on file with Employer. 21 Copies of any notices or other communications given under this Amended Agreement shall also be given to: Clayton, Dubilier & Rice, Inc. 375 Park Avenue New York, New York 10152 Attention: --------- Joseph L. Rice, III and Debevoise & Plimpton 875 Third Avenue New York, New York 10022 Attention: --------- Franci J. Blassberg, Esq. and Hale and Dorr LLP 60 State Street Boston, Massachusetts 02109 Attention: --------- Peter Tarr, Esq. (g) Voluntary Agreement. Executive represents that he is entering ------------------- into this Amended Agreement voluntarily and that his employment hereunder and compliance with the terms and conditions of this Amended Agreement will not conflict with or result in the breach by him of any agreement to which he is a party or by which he may be bound. (h) Counterparts. This Amended Agreement may be executed in ------------ counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. (i) Headings. The section and other headings contained in this -------- Amended Agreement are for the convenience of the parties only and are not intended to be a part hereof or to affect the meaning or interpretation hereof. (k) Certain Definitions. ------------------- 22 "Affiliate": with respect to any Person, means any other Person that, --------- directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with the first Person, including but not limited to a Subsidiary of the first Person, a Person of which the first Person is a Subsidiary, or another Subsidiary of a Person of which the first Person is also a Subsidiary. "Control": with respect to any Person, means the possession, directly ------- or indirectly, severally or jointly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities, by contract or credit arrangement, as trustee or executor, or otherwise. "Person": any natural person, firm, partnership, limited liability ------ company, association, corporation, company, trust, business trust, governmental authority or other entity. "Subsidiary": with respect to any Person, each corporation or other ---------- Person in which the first Person owns or Controls, directly or indirectly, capital stock or other ownership interests representing 50% or more of the combined voting power of the outstanding voting stock or other ownership interests of such corporation or other Person. 23 "Successor": of a Person means a Person that succeeds to the first --------- Person's assets and liabilities by merger, liquidation, dissolution or otherwise by operation of law, or a Person to which all or substantially all the assets and/or business of the first Person are transferred. IN WITNESS WHEREOF, Employer has duly executed this Amended Agreement by its authorized representative, and Executive has hereunto set his hand, in each case effective as of the date first above written. DYNATECH CORPORATION By: /s/ John F. Reno ----------------------------------- Name: John F. Reno Title: Chief Executive Officer Executive: /s/ Allan M. Kline ----------------------------------------- Name: Allan M. Kline 24 EX-10.3 5 EMPLOYMENT AGREEMENT BETWEEN CO & J. PEELER AMENDED AND RESTATED EMPLOYMENT AGREEMENT This AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into as of this 1st day of November, 1998 by and between Dynatech Corporation, a Massachusetts corporation ("Employer"), and John R. Peeler ("Executive"). W I T N E S S E T H : WHEREAS, Executive is currently employed by Employer as its Corporate Vice President and has been employed by Telecommunications Technics Corporation, a wholly-owned subsidiary of Employer ("TTC"), as its President and Chief Executive Officer; WHEREAS, pursuant and subject to the terms of the Agreement and Plan of Merger, dated as of December 20, 1997 (the "Merger Agreement"), by and between Employer and CDRD Merger Corporation, a Delaware corporation ("MergerCo"), Employer will be merged with and into MergerCo (the "Merger") and Employer will be the surviving corporation to the Merger; WHEREAS, Executive and Employer are currently parties to an Amended and Restated Employment Agreement, dated as of May 21, 1998 (the "Prior Agreement") which sets forth the terms and conditions of Executive's employment with Employer following the Merger; WHEREAS, Employer wishes to secure the continued services of Executive and Executive desires to accept such continued employment, in each case, on the terms and conditions set forth herein; WHEREAS, Employer and Executive wish to amend and restate the Prior Agreement in its entirety, as set forth herein (as so amended and restated, the "Amended Agreement"); WHEREAS, Employer and Executive acknowledge and agree that Executive has had and will continue to have a prominent role in the management of the business, and the development of the goodwill, of Employer and its Affiliates (as defined below) and has established and developed and will continue to establish and develop relations and contacts with the principal customers and suppliers of Employer and its Affiliates in the United States, Europe, the Pacific Rim and the rest of the world, all of which constitute valuable goodwill of, and could be used by Executive to compete unfairly with, Employer and its Affiliates; WHEREAS, (i) in the course of his employment with Employer, Executive - has obtained and will continue to obtain confidential and proprietary information and trade secrets concerning the business and operations of Employer and its Affiliates in the United States, Europe, the Pacific Rim and the rest of the world that could be used to compete unfairly with Employer and its Affiliates; (ii) the covenants and restrictions contained in Sections 8 through -- 13, inclusive, are intended to protect the legitimate interests of Employer and its Affiliates in their respective goodwill, trade secrets and other confidential and proprietary information; and (iii) Executive desires to be --- bound by such covenants and restrictions; NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises contained herein and for other good and valuable consideration, Employer and Executive hereby agree to amend and restate the Employment Agreement as follows: 1. Agreement to Continue Employment. Upon the terms and subject to -------------------------------- the conditions of this Amended Agreement, Employer hereby continues the employment of Executive, and Executive hereby accepts such continued employment by Employer. 2. Term; Position and Responsibilities. ----------------------------------- (a) Term of Employment. Unless Executive's employment shall sooner ------------------ terminate pursuant to Section 7, Employer shall employ Executive for a term commencing on the date of the consummation of the Merger (the "Commencement Date") and ending on the fifth anniversary of the Commencement Date (the "Initial Term"). Effective upon the expiration of the Initial Term and of each Additional Term (as defined below), Executive's employment hereunder shall be deemed to be automatically extended, upon the same terms and conditions, for an additional period of one year (each, an "Additional Term"), in each such case, commencing upon the expiration of the Initial Term or the then current Additional Term, as the case may be, unless Employer, at least 60 days prior to the expiration of the Initial Term or such Additional Term, shall give written notice (a "Non-Extension Notice") to Executive of its intention not to extend the Employment Period (as defined below) hereunder, provided that a Non- -------- Extension Notice shall not constitute a notice to Executive of the termination of his employment by Employer unless such notice specifically provides for such termination of employment and the specific date thereof. The period during which Executive is employed pursuant to this Amended Agreement, including any extension thereof in accordance with the preceding sentence, shall be referred to as the "Employment Period". 2 (b) Position and Responsibilities. During the Employment Period, ----------------------------- Executive shall serve as Corporate Vice President of Employer and President and Chief Executive Officer of all of Employer's communications test businesses and have such duties and responsibilities as are customarily assigned to individuals serving in such position and such other duties consistent with Executive's title and position as the Board of Directors of Employer (the "Board") specifies from time to time. For purposes of the preceding sentence, Itronix Corporation shall not be deemed to be a communications test business. Executive shall devote all of his skill, knowledge and working time (except for (i) vacation time as set - forth in Section 6(c) and absence for sickness or similar disability and (ii) to -- the extent that it does not interfere with the performance of Executive's duties hereunder, (A) such reasonable time as may be devoted to service on boards of - directors of other corporations and entities, subject to the provisions of Section 9, and the fulfillment of civic responsibilities and (B) such reasonable - time as may be necessary from time to time for personal financial matters) to the conscientious performance of the duties and responsibilities of such position. During the Employment Period, Employer shall use its reasonable best efforts to cause Executive to be nominated and elected to serve as a member of the Board of Directors, without additional compensation. 3. Base Salary. As compensation for the services to be performed by ----------- Executive during the Employment Period, Employer shall pay Executive a base salary at an annualized rate of $280,000, payable in installments on Employer's regular payroll dates. The Board shall review Executive's base salary annually during the period of his employment hereunder and, in its sole discretion, the Board may increase (but may not decrease) such base salary from time to time based upon the performance of Executive, the financial condition of Employer, prevailing industry salary levels and such other factors as the Board shall consider relevant. (The annual base salary payable to Executive under this Section 3, as the same may be increased from time to time and without regard to any reduction therefrom in accordance with the next sentence, shall hereinafter be referred to as the "Base Salary".) The Base Salary payable under this Section 3 shall be reduced to the extent that Executive elects to defer such Base Salary under the terms of any deferred compensation, savings plan or other voluntary deferral arrangement that may be maintained or established by Employer. 4. Incentive Compensation Arrangements. ----------------------------------- (a) Annual Incentive Compensation. During the Employment Period, ----------------------------- Employer shall maintain an annual incentive compensation program for its senior executives in which Executive shall be entitled to participate in accordance with the terms thereof as in effect from time to time, at a level commensurate with his position and duties with Employer, which program shall be operated in accordance with Employer's customary corporate practices and shall provide for an annual bonus based on such per- 3 formance targets as may be established from time to time by the Compensation Committee of the Board. (b) Roll-Over of Certain Options; Retention of Equity. ------------------------------------------------- (i) Prior to the Merger, Executive was the beneficial owner of 22,344 shares (together with the rights associated therewith pursuant to the Shareholders' Rights Agreement, dated as of February 16, 1989, as amended and restated as of March 12, 1990, the "Previously Owned Shares") of the common stock, par value $.20 per share, of Employer (the "Prior Common Stock") and held options to purchase 166,400 additional shares of Prior Common Stock, of which the options to purchase 28,800 shares of Prior Common Stock listed on Exhibit A hereto were treated as described in Section 2.3 of the Merger Agreement and the remaining options (such remaining options, the "Prior Options") to purchase 137,600 shares of Prior Common Stock were treated as described in Section 4(b)(iii) below. (ii) At the effective time of the Merger (the "Effective Time"), all of the Previously Owned Shares were converted into the right to receive the Merger Consideration, within the meaning and in accordance with the terms of the Merger Agreement. (iii) At the Effective Time, each Prior Option was automatically converted into a fully vested and exercisable option (the "Recapitalized Option") to purchase a number of shares (such shares, the "Recapitalized Option Shares") of common stock, par value $.20 per share, of the corporation surviving the Merger (the "Recapitalized Common Stock") equal to the sum of: (x) the quotient of (I) the product of (A) the number of shares of Prior Common - Stock subject to such Prior Option immediately prior to the Effective Time, multiplied by (B) the cash consideration per - share of Prior Common Stock paid pursuant to the Merger Agreement to holders of Prior Common Stock, divided by (II) the price per share of Recapitalized Common Stock paid by the CD&R Fund (as defined below) for the shares of MergerCo which were exchanged for the shares of the Company's Recapitalized Common Stock upon the consummation of the Merger, and (y) the product of (I) the number of shares of Prior Common Stock - subject to such Prior Option immediately prior to the Effective Time, multiplied by (II) the number of shares of Recapitalized Common Stock -- transferred 4 pursuant to the Merger Agreement to holders of Prior Common Stock for each such share of Prior Common Stock. Each Recapitalized Option shall have an exercise price per Recapitalized Option Share equal to the quotient of: (x) the aggregate exercise price for all shares of Prior Common Stock subject to the corresponding Prior Option, divided by (y) the number of Recapitalized Option Shares subject to such Recapitalized Option immediately following the conversion thereof contemplated hereby. Each of the Company and Executive agree that the foregoing adjustment in the number of shares and the exercise prices applicable in respect of Recapitalized Options is intended to comply with the procedures for adjusting the number of shares subject to stock options (and the corresponding exercise prices) in a corporate transaction under Section 424 of the Internal Revenue Code of 1986, as amended (the "Code") and the regulations thereunder, regardless of whether such Section is applicable to such Recapitalized Options. The method used to determine fair market value of the Company's stock for purposes of such adjustment as a result of the Merger was the arm's length negotiated value assigned to the Recapitalized Common Stock in connection with the Merger (the "Merger Method"), which is one of several acceptable valuation methods expressly set forth in Treas. Reg. (S)1.425-1(b)(7). (iv) Each Nonqualified Recapitalized Option (as defined below) and each Disqualified Recapitalized Option (as defined below) shall provide that it shall expire on the normal expiration date specified in the option award agreement evidencing the corresponding Prior Option that applies if Executive's employment continues at least until such date (such date, the "Original Termination Date"), provided that (x) in the event of the termination of - Executive's employment with Employer prior to an applicable Original Termination Date as a result of Executive's death, Executive's Disability (as defined below), a termination of Executive's employment by Employer Without Cause (as defined below) or a termination of Executive's employment by Executive for Good Reason (as defined below), each then outstanding Nonqualified Recapitalized Option and Disqualified Recapitalized Option shall expire on the earlier of (I) - its Original Termination Date and (II) the later of (A) the six month -- - anniversary of the date of the expiration of any initial lock-up period imposed on sales of Recapitalized Common Stock in connection with the first underwritten public offering of any shares of Recapitalized Common Stock led by one or more underwriters, at least one of which is of nationally recognized standing (such 5 expiration date, the "Lock-Up Expiration Date"), and (B) the first anniversary - of the applicable Date of Termination (as defined below) and (y) in the event of - the termination of Executive's employment with Employer prior to such Original Termination Date for any reason other than the reasons described in the immediately preceding clause (x), each then outstanding Nonqualified Recapitalized Option and Disqualified Recapitalized Option shall expire on the earliest of (I) its Original Termination Date, (II) the later of (1) the 90th - -- - day following the Lock-Up Expiration Date and (2) the 30th day following the - applicable Date of Termination and (III) the first anniversary of the applicable --- Date of Termination. Each Recapitalized Vested ISO and each Recapitalized Accelerated ISO that is not a Disqualified Recapitalized Option shall provide that it shall expire on the expiration date specified in the option award agreement evidencing the corresponding Prior ISO, including without limitation, any such early expiration date applicable in the case of a termination of Executive's employment. For purposes of this Section 4(b)(iv), the following terms shall have the meanings set forth below. (A) "Disqualified Recapitalized Option" means those Recapitalized Accelerated ISOs having an aggregate exercise price exceeding the excess of (1) $100,000 over - (2) the aggregate exercise price of all Recapitalized Vested - ISOs, the corresponding Prior ISO of which became vested and exercisable in calendar year 1998 prior to the Effective Time (B) "Nonqualified Recapitalized Option" means each Recapitalized Option that is a successor option to a Prior Option that, immediately prior to the Effective Time, is intended to be a nonqualified stock option. (C) "Prior ISO" means each Prior Option that, immediately prior to the Effective Time, is intended to qualify as an "incentive stock option" under section 422 of the Code. (D) "Recapitalized Accelerated ISO" means each Recapitalized Option that is a successor option to a Prior ISO that becomes vested solely as a result of the acceleration of the vesting of Prior Options in connection with, and as of the Effective Time of, the Merger. 6 (E) "Recapitalized Vested ISO" means each Recapitalized Option that is a successor option to a Prior ISO that became vested and exercisable prior to the Effective Time and not in connection with the Merger. (v) Executive, Employer and Clayton, Dubilier & Rice Fund V Limited Partnership (the "CD&R Fund") shall enter into a separate agreement (the "Ancillary Agreement"), to become effective as of the Effective Time, that will provide, among other things, that: (A) during the Employment Period, the CD&R Fund will vote its shares of Recapitalized Common Stock in favor of the election of Executive to serve as a member of the Board; (B) Executive shall not be permitted, at any time during his employment with Employer, to sell, transfer or otherwise dispose of any shares of Recapitalized Common Stock beneficially owned by him (including any Recapitalized Option Shares), other than (I) transfers upon death to - Executive's estate, (II) transfers to family trusts or partnerships for -- estate planning purposes or (III) de minimis transfers during the --- Employment Period not exceeding, in the aggregate, 25% of the sum of the aggregate shares of Recapitalized Common Stock beneficially owned by Executive as of the Commencement Date and the aggregate Recapitalized Option Shares subject to the Recapitalized Options held by Executive as of the Commencement Date, provided, in the case of any transfer pursuant to -------- the foregoing clause (I) or (II), that the executor of Executive's estate or the trustee or general partner of any such trust or partnership, as applicable, shall agree, in form and substance reasonably satisfactory to Employer, to be bound by all of the provisions of the Ancillary Agreement; (C) following any termination of Executive's employment with Employer, Employer and the CD&R Fund shall have successive rights to repurchase any Recapitalized Options and/or Recapitalized Option Shares then beneficially owned or held by Executive for a purchase price equal to the then fair market value of the Recapitalized Option Shares or the Recapitalized Option Shares then subject to the Recapitalized Options, as applicable (reduced by the option exercise price in the case of a purchase of Recapitalized Options), such fair market value to be determined in good faith by the Board on the basis of an independent valuation of the Recapitalized Common Stock, provided, that the determination of such fair market value will not -------- give effect to (x) any restrictions on transfer of such shares, - 7 (y) the fact that such shares are not registered for resale by Executive - under the Securities Act of 1933, as amended, or (z) the fact that such - shares would represent a minority interest in Employer; (D) in the event of certain qualifying sales of Recapitalized Common Stock by the CD&R Fund, Executive shall have the right to sell a pro rata portion of the shares of Recapitalized Common Stock then owned by him, on the same terms and conditions as the CD&R Fund; and (E) in the event of the sale by the CD&R Fund of substantially all of the Recapitalized Common Stock then beneficially owned by it (other than any such sale to an Affiliate of the CD&R Fund), the CD&R Fund shall have the right to require Executive to sell the same percentage of the Recapitalized Common Stock then beneficially owned by him as will be sold by the CD&R Fund, on the same terms and conditions as the CD&R Fund, and Employer shall have the right to cause any Recapitalized Options then held by Executive to be canceled in exchange for a payment in respect of each Recapitalized Option Share covered by such Recapitalized Options equal to the excess, if any, of the price per share of Recapitalized Common Stock paid to holders of Recapitalized Common Stock in connection with such sale over the applicable option exercise price. (F) The transfer restrictions described in the foregoing subparagraph (B) shall terminate on the earlier of (I) the fifth anniversary of the - Commencement Date and (II) the Lock-Up Expiration Date. The rights and -- obligations of Executive and Employer under the foregoing subparagraphs (C), (D) and (E) of this Section 4(b)(v) shall terminate on the closing date following the effective date of the first registration statement filed under the Securities Act by Employer after the Commencement Date with respect to an underwritten public offering of any shares of Employer's capital stock led by one or more underwriters, at least one of which is of nationally recognized standing. (c) In the event that, due to the adjustment provided in this Section 4 with respect to the number of shares of the Recapitalized Common Stock subject to Recapitalized Options, the amount of Covered Federal Taxes (as defined below) payable by Executive solely in respect of the Recapitalized Options exceeds the amount of such Covered Federal Taxes that would have been incurred by Executive solely in respect of the Recapitalized Options had the proper adjustment applicable to such Recapitalized Options been finally determined for Federal income tax purposes to be a method of adjustment other than the Merger Method and, as a result, the amount of Covered Federal Taxes payable by Executive exceeds the amount of such Covered Federal Taxes otherwise 8 payable by Executive, to be determined after first taking into account the provisions of Section 7(i)(i)-(v) hereof (such excess hereinafter referred to as the "Excess Liability"), the Company shall, in addition to any other amounts payable to Executive under this Agreement, pay to Executive an amount equal to the sum of (i) such Excess Liability and (ii) any and all Covered Federal Taxes - -- and any other Federal taxes and any state or local income and employment taxes, if any, incurred by Executive by reason of the payment required to be made under this Section 4(c). For purposes of this Section 4(c), Covered Federal Taxes shall mean any tax imposed on Executive under any provision of the Code as in effect on the date hereof (or any successor provision thereto), other than any income, employment, estate or gift tax. 5. Employee Benefits. During the Employment Period, Executive shall ----------------- be entitled to participate in all of Employer's profit sharing, pension, savings, deferred compensation, supplemental savings, life, medical, dental and disability insurance plans, as the same may be amended and in effect from time to time, applicable to senior executives of Employer, provided that Executive -------- shall not be entitled to participate in any severance plan of Employer or otherwise receive any severance benefits under any other type of plan. The benefits referred to in this Section 5 shall be provided to Executive on a basis that is commensurate with Executive's position and duties with Employer hereunder and shall be substantially comparable, in the aggregate, to the benefits (exclusive of severance and equity or other incentive compensation benefits) provided to Executive immediately prior to the Commencement Date. 6. Perquisites and Expenses. ------------------------ (a) General. During the Employment Period, Executive shall be ------- entitled to participate in all special benefit or perquisite programs generally available from time to time to senior executives of Employer, including Employer's programs providing for reimbursement of certain automobile expenses, club social dues and fees for tax return preparation, financial planning and investment advisory services, on the terms and conditions in effect from time to time under each such program. (b) Business Travel, Lodging, etc. Employer shall reimburse Executive ------------------------------ for reasonable travel, lodging, meal and other reasonable expenses incurred by him in connection with his performance of services hereunder upon submission of evidence, satisfactory to Employer, of the incurrence and purpose of each such expense and otherwise in accordance with Employer's business travel reimbursement policy applicable to its senior executives as in effect from time to time. 9 (c) Vacation. During the Employment Period, Executive shall be -------- entitled to a number of weeks of paid vacation, without carryover accumulation, determined in accordance with the terms of Employer's vacation policy applicable to senior executives as in effect from time to time. As soon as reasonably practicable following the Commencement Date, Employer shall pay Executive a cash amount equal to $44,423, which shall be in full and complete satisfaction of all then unpaid vacation pay accrued by Executive with respect to periods of employment completed prior to November 30, 1997. 7. Termination of Employment. ------------------------- (a) Termination Due to Death or Disability. In the event that -------------------------------------- Executive's employment hereunder terminates due to death or is terminated by Employer due to Executive's Disability (as defined below), no termination benefits shall be payable to or in respect of Executive except as provided in Section 7(f)(ii). For purposes of this Amended Agreement, "Disability" shall mean a physical or mental disability that prevents the performance by Executive of his duties hereunder lasting (or likely to last, based on competent medical evidence presented to the Board) for a continuous period of six months or longer. The reasoned and good faith judgment of the Board as to Executive's Disability shall be based on such competent medical evidence as shall be presented to it by Executive or by any physician or group of physicians or other competent medical experts employed by Executive or Employer to advise the Board. (b) Termination by Employer for Cause. Executive's employment with --------------------------------- Employer may be terminated by Employer for Cause (as defined below), provided -------- that Executive shall be permitted to attend a meeting of the Board within 30 days after delivery to him of a Notice of Termination (as defined below) pursuant to this Section 7(b) to explain why he should not be terminated for Cause and, if following any such explanation by Executive, the Board determines that Employer does not have Cause to terminate Executive's employment, any such prior Notice of Termination delivered to Executive shall thereupon be withdrawn and of no further force or effect. "Cause" shall mean (i) the willful failure - of Executive substantially to perform his duties hereunder (other than any such failure due to Executive's physical or mental illness) or other willful and material breach by Executive of any of his obligations hereunder, after a written demand for substantial performance has been delivered, and a reasonable opportunity to cure has been given, to Executive by the Board, which demand identifies in reasonable detail the manner in which the Board believes that Executive has not substantially performed his duties or has breached his obligations, (ii) Executive's dishonesty or engaging in willful and serious -- misconduct, which misconduct has caused or is reasonably expected to result in direct or indirect material injury to Employer or any of its Affiliates or (iii) --- Executive's conviction of, or entering a plea of guilty or nolo contendere to, a ---- ---------- crime that constitutes a felony. 10 (c) Termination Without Cause. A termination "Without Cause" shall ------------------------- mean a termination of Executive's employment by Employer other than due to Disability as described in Section 7(a) or for Cause as described in Section 7(b). (d) Termination by Executive. Executive may terminate his employment ------------------------ for any reason. A termination of employment by Executive for "Good Reason" shall mean a termination by Executive of his employment with Employer within 30 days following the occurrence, without Executive's consent, of any of the following events: (i) the assignment to Executive of (x) a title that is - - different from, and a diminution from, the title specified in Section 2 or (y) - duties that are significantly different from, and that result in a substantial diminution of, the duties specified in Section 2 or that he is to assume on the Commencement Date, (ii) the failure of Employer to obtain the assumption of this -- Amended Agreement by any Successor (as defined below) to Employer as contemplated by Section 14, (iii) a reduction in the rate of Executive's Base --- Salary, (iv) a material reduction in the aggregate level of employee and -- executive benefits provided to Executive pursuant to Section 5 hereof, (v) - Employer's delivery to Executive of a Non-Extension Notice or (vi) a relocation -- of Executive's principal place of business to a location beyond a radius of 30 miles from the location of such place of business on the Commencement Date, provided that, within 30 days following the occurrence of any of the events set - -------- forth therein, Executive shall have delivered written notice to Employer of his intention to terminate his employment for Good Reason, which notice specifies in reasonable detail the circumstances claimed to give rise to Executive's right to terminate his employment for Good Reason, and Employer shall not have cured such circumstances to the reasonable satisfaction of Executive. (e) Notice of Termination. Any termination of Executive's employment --------------------- hereunder by Employer pursuant to Section 7(a), 7(b) or 7(c), or by Executive pursuant to Section 7(d), shall be communicated by a written Notice of Termination addressed to the other. A "Notice of Termination" shall mean a notice stating that Executive's employment with Employer has been or will be terminated and setting forth the provisions hereof pursuant to which such employment has or will be terminated. (f) Payments Upon Certain Terminations. ---------------------------------- (i) In the event of a termination of Executive's employment by Employer Without Cause or a termination by Executive of his employment for Good Reason during the Employment Period, Employer shall pay to Executive his full Base Salary through the Date of Termination and an amount equal to the pro rata amount of annual incentive compensation for the portion of the fiscal year preceding the Date of Termination that would have been payable to Executive pursuant to Section 4(a) if he had 11 remained employed for the entire fiscal year, determined on the basis of the actual performance achieved by Employer through the Date of Termination and the performance objectives established for such fiscal year, pro rated to reflect the calculation of such annual incentive compensation for the portion of the fiscal year preceding the Date of Termination. In addition, in the event of any such termination, Employer shall pay or, in the case of the Continued Benefits (as defined below), provide to Executive (or, following his death, to Executive's designated beneficiary or beneficiaries), as liquidated damages, (A) his Average Base Salary (as defined below), which shall be payable in installments on Employer's regular payroll dates, for the period beginning on the Date of Termination (as defined below) and ending on the second anniversary of the Date of Termination (such period, the "Severance Period") and (B) on the last day of each calendar month included in the Severance Period, an amount equal to one-twelfth of the Average Annual Bonus (as defined below); and (C) continued coverage for Executive and his eligible dependents under Employer's medical insurance plans referred to in Section 5 (the "Continued Benefits") during the period commencing on the Termination Date and ending on the earlier of (i) Executive's 65th birthday and (ii) the - -- date of Executive's death, subject to timely payment by Executive of all premiums, contributions and other co-payments required to be paid by senior executives of Employer under the terms of such plans as in effect from time to time; provided that Employer may, at any time, pay to Executive, in a single lump sum - -------- and in satisfaction of Employer's obligations under clauses (A) and (B) of this Section 7(f)(i), an amount equal to the present value (as determined by Employer using a discount rate equal to the then prevailing applicable federal short-term rate under section 1274(d) of the Internal Revenue Code of 1986, as amended) of the sum of the installments of the Average Base Salary and Average Annual Bonus then remaining to be paid to Executive pursuant to clauses (A) and (B) above. Executive shall not have a duty to mitigate the costs to Employer under this Section 7(f)(i), except that (i) payments of Base Salary and Average - Annual Bonus will be reduced, but not below zero, by the amount of any compensation earned by Executive (whether paid currently or deferred) during any portion of the Severance Period from any subsequent employer or other Person (as defined in Section 17(k) below) for which Executive performs services, including but not limited to consulting services, and (ii) Continued Benefits shall be -- reduced or canceled if comparable medical benefit 12 coverage is provided or offered to Executive by any subsequent employer or other Person for which Executive performs services, including but not limited to consulting services, at any time after the Date of Termination. The term "Average Annual Bonus" means the average of the annual bonuses paid to Executive pursuant to Employer's annual incentive compensation plan for each of the three fiscal years of Employer ending immediately prior to the Date of Termination or, if fewer, each of such fiscal years during which Executive was at any time employed by Employer and the term "Average Base Salary" means the average of the annual base salary rate of Executive in effect immediately prior to the Date of Termination and as of the last day of each of the two fiscal years of Employer ending immediately prior to the Date of Termination or, if fewer, each of such fiscal years during which Executive was at any time employed by Employer; provided that if Executive's employment is -------- terminated by Executive pursuant to clause (iii) of the definition of Good Reason, Executive's annual base salary rate in effect immediately prior to any reduction thereof shall be substituted for Executive's annual base salary rate in effect immediately prior to the Date of Termination in calculating the Average Base Salary. (ii) If Executive's employment shall terminate upon his death or Disability or if Employer shall terminate Executive's employment for Cause or Executive shall terminate his employment without Good Reason during the Employment Period, Employer shall pay Executive his full Base Salary through the Date of Termination and, in the case of any such termination upon Executive's death or Disability, Executive shall be entitled to receive (x) a cash payment - equal to the pro rata amount of annual incentive compensation for the portion of the fiscal year preceding the Date of Termination (exclusive of any time between the onset of a physical or mental disability that prevents the performance by Executive of his duties hereunder and the resulting Date of Termination) that would have been payable to Executive pursuant to Section 4(a) if he had remained employed for the entire fiscal year, determined on the basis of the actual performance achieved by Employer through the Date of Termination and the performance objectives established for such fiscal year, pro rated to reflect the calculation of such annual incentive compensation for the portion of the fiscal year preceding the Date of Termination and (y) such death or Disability - benefits, as applicable, as are provided under the terms of any employee and executive death benefit and disability plans and programs referred to in Section 5 or 6(a). (iii) Except as specifically set forth in this Section 7(f), Executive shall be entitled to receive all amounts payable and benefits accrued under any otherwise applicable plan, policy, program or practice of Employer in which Executive was a participant during his employment with Employer (including, without limitation, 13 Employer's 401(k) Savings Plan and Supplemental 401(k) Savings Plan) in accordance with the terms thereof, provided that Executive shall not be entitled to receive any payments or benefits under any such plan, policy, program or practice providing any bonus or incentive compensation or severance compensation or benefits (and the provisions of this Section 7(f) shall supersede the provisions of any such plan, policy, program or practice). (g) Date of Termination. As used in this Amended Agreement, the term ------------------- "Date of Termination" shall mean (i) if Executive's employment is terminated by - his death, the date of his death, (ii) if Executive's employment is terminated -- by Employer for Cause, the date on which Notice of Termination is given as contemplated by Section 7(e) or, if later, the date of termination specified in such Notice, and (iii) if Executive's employment is terminated by Employer --- Without Cause, due to Executive's Disability or by Executive for any reason, the date that is 30 days after the date on which Notice of Termination is given as contemplated by Section 7(e) or, if no such Notice is given, immediately upon the termination of Executive's employment. (h) Resignation upon Termination. Effective as of any Date of ---------------------------- Termination under this Section 7 or otherwise as of the date of Executive's termination of employment with Employer, Executive shall resign, in writing, from all Board memberships and other positions then held by him with Employer and its Affiliates. (i) Limit on Payments by the Company. -------------------------------- (i) Notwithstanding any provision of this Amended Agreement other than Section 7(i)(vi) below , in the event that any amount or benefit paid, payable or distributed to Executive pursuant to this Amended Agreement which is a parachute payment as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), taken together with any amounts or benefits otherwise paid, payable or distributed to Executive by Employer or any Affiliate thereof which are parachute payments as defined in Section 280G of the Code (collectively, the "Covered Payments"), would be an "excess parachute payment" as defined in Section 280G of the Code, and would thereby subject Executive to the tax (the "Excise Tax") imposed under Section 4999 of the Code (or any similar tax that may hereafter be imposed), the provisions of this Section 7(i) shall apply to determine the amounts payable to Executive pursuant to Section 7(f) of this Amended Agreement. (ii) Immediately following delivery of any Notice of Termination, the Company shall notify Executive of the aggregate present value of all termination benefits to which he would be entitled under this Amended Agreement and any other plan, 14 program or arrangement as of the projected Date of Termination, together with the projected maximum payments, determined as of such projected Date of Termination that could be paid without Executive being subject to the Excise Tax. (iii) If the aggregate value of all parachute payments to be paid or provided to Executive under this Amended Agreement and any other plan, agreement or arrangement with Employer or any Affiliate thereof exceeds the amount of parachute payments which can be paid to Executive without Executive incurring an Excise Tax, then the amounts payable to Executive under Section 7(f) shall be reduced (but not below zero) to the maximum amount which may be paid hereunder without Executive becoming subject to such an Excise Tax (such amount to be referred to as the "Payment Cap"). In the event that Executive receives reduced payments and benefits hereunder, Executive shall have the right to designate which of the payments and benefits otherwise provided for in Section 7(f) of this Amended Agreement he will receive in connection with the application of the Payment Cap. (iv) For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) (x) whether any amount or benefit paid, payable or distributed to Executive is a "parachute payment" within the meaning of Section 280G of the Code, and (y) whether there are "parachute payments" in excess of the "base amount" (as defined under Section 280G(b)(3) of the Code) shall be determined in good faith by Employer's independent certified public accountants or tax counsel selected by such accountants (the "Accountants"), provided however that payments or benefits made or provided to Executive pursuant to Sections 3 through 6 of this Amended Agreement in respect of periods of Executive's employment with Employer (other than any amount attributable to the acceleration of any Prior Options) shall not be treated as parachute payments, and (B) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (v) If Executive receives reduced payments and benefits as a result of the provisions of this Section 7(i) (or this Section 7(i) is determined not to be applicable to Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that, notwithstanding the good 15 faith of Executive and Employer in applying the terms of this Amended Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to Executive or for his benefit are in an amount that would result in Executive's being subject to an Excise Tax, then any amounts actually paid to or on behalf of Executive which are treated as excess parachute payments shall be deemed for all purposes to be a loan to Executive made on the date of receipt of such excess payments, which Executive shall have an obligation to repay to Employer on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by Executive. If Executive receives reduced payments and benefits by reason of this Section 7(i) and it is established pursuant to a Final Determination that Executive could have received a greater amount without exceeding the Payment Cap, then Employer shall promptly thereafter pay Executive the aggregate additional amount which could have been paid without exceeding the Payment Cap, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the original payment due date to the date of actual payment by Employer. (vi) Notwithstanding anything else contained in this Section 7(i) to the contrary, nothing in this Section 7(i) shall be construed to limit the Company's obligation to make any payment to Executive with respect to any Excess Liability determined pursuant to Section 4(c) above. 8. Unauthorized Disclosure. During the period of Executive's ----------------------- employment with Employer and the ten year period following any termination of such employment, without the prior written consent of the Board or its authorized representative, except to the extent required by an order of a court having jurisdiction or under subpoena from an appropriate government agency, in which event, Executive shall use his best efforts to consult with the Board prior to responding to any such order or subpoena, and except as required in the performance of his duties hereunder, Executive shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs, information regarding product development, marketing plans, sales plans, manufacturing plans, management organization information (including but not limited to data and other information relating to members of the Board or the Board of Directors of any of Employer's Affiliates or to management of Employer or any of its Affiliates), operating policies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating to Employer or any of its Affiliates or (b) - - that Employer or any of its Affiliates may receive belonging to suppliers, customers or others who do business with Employer or any of its Affiliates (collectively, "Confidential Information") to any third person unless such Confidential Information has 16 been previously disclosed to the public or is in the public domain (other than by reason of Executive's breach of this Section 8). 9. Non-Competition. During the period of Executive's employment with --------------- Employer and, following any termination thereof, the period ending on the second anniversary of the Date of Termination (such periods, collectively, the "Restriction Period"), Executive shall not, directly or indirectly, become employed in an executive capacity by, engage in business with, serve as an agent or consultant to, or become a partner, member, principal or stockholder (other than a holder of less than 5% of the outstanding voting shares of any publicly held company) of, any Person that competes or has a reasonable potential for competing, anywhere in the world, with any part of the business of Employer or any of its Subsidiaries (as defined below). For purposes of this Section 9, the phrase employment "in an executive capacity" shall mean employment in any position in connection with which Executive has or reasonably would be viewed as having powers and authorities with respect to any other Person or any part of the business thereof that are substantially similar, with respect thereto, to the powers and authorities assigned to the Corporate Vice President or any superior executive officer of Employer or to the President or Chief Executive Officer of TTC in the By-Laws of Employer or TTC, as applicable, as in effect on the date hereof, a copy of the relevant portions of which have been delivered to Executive on or before the date hereof, and which Executive hereby confirms that he has reviewed. Notwithstanding the foregoing, in the event that, as a result of the operation of the provisions of Section 7(i), payments of Average Base Salary and Average Annual Bonus otherwise required to be paid to Executive for the entire Severance Period are paid to Executive for a period of less than two years following the applicable Date of Termination, the Restriction Period shall expire as of the later of (i) the date such payments of Average Base Salary and - Average Annual Bonus cease (or, if Employer elects to pay Executive a lump sum amount pursuant to Section 7(f)(i), the date such payments would have ceased had such payments continued to be made in installments) and (ii) the first -- anniversary of the Date of Termination. 10. Non-Solicitation of Employees. During the Restriction Period, ----------------------------- Executive shall not, directly or indirectly, for his own account or for the account of any other Person anywhere in the world, (i) solicit for employment, - employ or otherwise interfere with the relationship of Employer or any of its Affiliates with any natural person throughout the world who is or was employed by or otherwise engaged to perform services for Employer or any of its Affiliates at any time during which Executive was employed by Employer (in the case of any such activity during such time) or during the six-month period preceding such solicitation, employment or interference (in the case of any such activity after the Date of Termination), other than any such solicitation or 17 employment on behalf of Employer or any of its Affiliates during Executive's employment with Employer, or (ii) induce any employee of Employer or any of its -- Affiliates who is a member of management to engage in any activity which Executive is prohibited from engaging in under any of Sections 8, 9, 10 or 11 or to terminate his employment with Employer. 11. Non-Solicitation of Customers. During the Restriction Period, ----------------------------- Executive shall not, directly or indirectly, for his own account or for the account of any other Person anywhere in the world, solicit or otherwise attempt to establish any business relationship of a nature that is competitive with the business or relationship of Employer or any of its Affiliates with any Person throughout the world which is or was a customer, client or distributor of Employer or any of its Affiliates at any time during which Executive was employed by Employer (in the case of any such activity during such time) or during the twelve-month period preceding the Date of Termination (in the case of any such activity after the Date of Termination), other than any such solicitation on behalf of Employer or any of its Affiliates during Executive's employment with Employer. 12. Return of Documents. In the event of the termination of ------------------- Executive's employment for any reason, Executive shall deliver to Employer all of (a) the property of each of Employer and its Affiliates and (b) the non- - - personal documents and data of any nature and in whatever medium of each of Employer and its Affiliates, and he shall not take with him any such property, documents or data or any reproduction thereof, or any documents containing or pertaining to any Confidential Information. 13. Injunctive Relief with Respect to Covenants; Forum, Venue and ------------------------------------------------------------- Jurisdiction. Executive acknowledges and agrees that the covenants, obligations - ------------ and agreements of Executive contained in Sections 8, 9, 10, 11, 12 and 13 relate to special, unique and extraordinary matters and that a violation of any of the terms of such covenants, obligations or agreements will cause Employer irreparable injury for which adequate remedies are not available at law. Therefore, Executive agrees that Employer shall be entitled to an injunction, restraining order or such other equitable relief (without the requirement to post bond) as a court of competent jurisdiction may deem necessary or appropriate to restrain Executive from committing any violation of such covenants, obligations or agreements. These injunctive remedies are cumulative and in addition to any other rights and remedies Employer may have. Employer and Executive hereby irrevocably submit to the exclusive jurisdiction of the courts of Massachusetts and the Federal courts of the United States of America, in each case located in Boston, Massachusetts, in respect of the injunctive remedies set forth in this Section 13 and the interpretation and enforcement of Sections 8, 9, 10, 11, 12 and 13 insofar as such interpretation and enforcement relate to any request or application for injunctive relief in 18 accordance with the provisions of this Section 13, and the parties hereto hereby irrevocably agree that (a) the sole and exclusive appropriate venue for any suit - or proceeding relating solely to such injunctive relief shall be in such a court, (b) all claims with respect to any request or application for such - injunctive relief shall be heard and determined exclusively in such a court, (c) - any such court shall have exclusive jurisdiction over the person of such parties and over the subject matter of any dispute relating to any request or application for such injunctive relief, and (d) each hereby waives any and all - objections and defenses based on forum, venue or personal or subject matter jurisdiction as they may relate to an application for such injunctive relief in a suit or proceeding brought before such a court in accordance with the provisions of this Section 13. Notwithstanding any other provision hereof, (i) Executive's - obligations under Sections 9, 10 and 11 are subject to timely payment by Employer of the amounts, if any, required to be paid to Executive pursuant to Section 7(f) (taking into account any reduction in such amounts permitted under Section 7(i)) and (ii) Employer's obligations to pay Executive any amount -- pursuant to Section 7(f) is subject to Executive's compliance with his obligations under Sections 9, 10 and 11. 14. Assumption of Agreement. Employer shall require any Successor ----------------------- thereto, by agreement in form and substance reasonably satisfactory to Executive, to expressly assume and agree to perform this Amended Agreement in the same manner and to the same extent that Employer would be required to perform it if no such succession had taken place. 15. Entire Agreement; Termination of Prior Agreement. This Amended ------------------------------------------------ Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof. All prior correspondence and proposals (including but not limited to summaries of proposed terms) and all prior promises, representations, understandings, arrangements and agreements relating to such subject matter (including but not limited to those made to or with Executive by any other Person and those contained in the Prior Agreement or any other prior employment, consulting or similar agreement entered into by Executive and Employer or any predecessor thereto or Affiliate thereof) are merged herein and superseded hereby. Executive and Employer each acknowledges and agrees that the Prior Agreement is hereby terminated in its entirety and shall be of no further force or effect, without any payment or other consideration to or in respect of Executive. 19 16. Indemnification. Employer hereby agrees that, notwithstanding --------------- the fact that Employer is a Massachusetts corporation, Employer shall indemnify and hold harmless Executive to the fullest extent permitted by Delaware law, as if Employer were a Delaware corporation, from and against any and all liabilities, costs, claims and expenses, including all costs and expenses incurred in defense of litigation (including attorneys' fees), arising out of the employment of Executive hereunder, it being understood that there shall be no indemnification in respect of any claim arising out of or based upon Executive's gross negligence or willful misconduct. Costs and expenses incurred by Executive in defense of such litigation (including attorneys' fees) shall be paid by Employer in advance of the final disposition of such litigation upon receipt by Employer of (a) a written request for payment, (b) appropriate - - documentation evidencing the incurrence, amount and nature of the costs and expenses for which payment is being sought, and (c) an undertaking adequate - under Massachusetts law made by or on behalf of Executive to repay the amounts so paid if it shall ultimately be determined that Executive is not entitled to be indemnified by Employer under this Amended Agreement, including but not limited to as a result of such exception. 17. Miscellaneous. ------------- (a) Binding Effect; Assignment. This Amended Agreement shall be -------------------------- binding on and inure to the benefit of Employer, and its successors and permitted assigns. This Amended Agreement shall also be binding on and inure to the benefit of Executive and his heirs, executors, administrators and legal representatives. This Amended Agreement shall not be assignable by any party hereto without the prior written consent of the other, except as provided pursuant to this Section 17(a). Employer may effect such an assignment without prior written approval of Executive upon the transfer of all or substantially all of its business and/or assets (by whatever means), provided that the -------- Successor to Employer shall expressly assume and agree to perform this Amended Agreement in accordance with the provisions of Section 14. (b) Governing Law. This Amended Agreement shall be governed by and ------------- construed in accordance with the laws of Massachusetts without reference to principles of conflicts of laws. (c) Taxes. Employer may withhold from any payments made under this ----- Amended Agreement all applicable taxes, including but not limited to income, employment and social insurance taxes, as shall be required by law. (d) Amendments. No provision of this Amended Agreement may be ---------- modified, waived or discharged unless such modification, waiver or discharge is approved 20 by the Board or a Person authorized thereby and is agreed to in writing by Executive. No waiver by any party hereto at any time of any breach by any other party hereto of, or compliance with, any condition or provision of this Amended Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No waiver of any provision of this Amended Agreement shall be implied from any course of dealing between or among the parties hereto or from any failure by any party hereto to assert its rights hereunder on any occasion or series of occasions. (e) Severability. In the event that any one or more of the ------------ provisions of this Amended Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. (f) Notices. Any notice or other communication required or permitted ------- to be delivered under this Amended Agreement shall be (i) in writing, (ii) - -- delivered personally, by courier service or by certified or registered mail, first-class postage prepaid and return receipt requested, (iii) deemed to have --- been received on the date of delivery or, if so mailed, on the third business day after the mailing thereof, and (iv) addressed as follows (or to such other -- address as the party entitled to notice shall hereafter designate in accordance with the terms hereof): (A) If to Employer, to it at: Dynatech Corporation Corporate Headquarters 3 New England Executive Park Burlington, MA 01803 Attention: General Counsel --------- (B) if to Executive, to him at his residential address as currently on file with Employer. Copies of any notices or other communications given under this Amended Agreement shall also be given to: Clayton, Dubilier & Rice, Inc. 375 Park Avenue New York, New York 10152 Attention: --------- 21 Joseph L. Rice, III and Debevoise & Plimpton 875 Third Avenue New York, New York 10022 Attention: --------- Franci J. Blassberg, Esq. and Hale and Dorr LLP 60 State Street Boston, Massachusetts 02109 Attention: --------- Peter Tarr, Esq. (g) Voluntary Agreement. Executive represents that he is entering ------------------- into this Amended Agreement voluntarily and that his employment hereunder and compliance with the terms and conditions of this Amended Agreement will not conflict with or result in the breach by him of any agreement to which he is a party or by which he may be bound. (h) Counterparts. This Amended Agreement may be executed in ------------ counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. (i) Headings. The section and other headings contained in this -------- Amended Agreement are for the convenience of the parties only and are not intended to be a part hereof or to affect the meaning or interpretation hereof. (k) Certain Definitions. ------------------- "Affiliate": with respect to any Person, means any other Person that, --------- directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with the first Person, including but not limited to a Subsidiary of the first Person, a Person of which the first Person is a Subsidiary, or another Subsidiary of a Person of which the first Person is also a Subsidiary. 22 "Control": with respect to any Person, means the possession, directly ------- or indirectly, severally or jointly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities, by contract or credit arrangement, as trustee or executor, or otherwise. "Person": any natural person, firm, partnership, limited liability ------ company, association, corporation, company, trust, business trust, governmental authority or other entity. "Subsidiary": with respect to any Person, each corporation or other ---------- Person in which the first Person owns or Controls, directly or indirectly, capital stock or other ownership interests representing 50% or more of the combined voting power of the outstanding voting stock or other ownership interests of such corporation or other Person. 23 "Successor": of a Person means a Person that succeeds to the first --------- Person's assets and liabilities by merger, liquidation, dissolution or otherwise by operation of law, or a Person to which all or substantially all the assets and/or business of the first Person are transferred. IN WITNESS WHEREOF, Employer has duly executed this Amended Agreement by its authorized representative, and Executive has hereunto set his hand, in each case effective as of the date first above written. DYNATECH CORPORATION By: /s/ John F. Reno ----------------------------------- Name: John F. Reno Title: Chief Executive Officer Executive: /s/ John R. Peeler -------------------------------------- Name: John R. Peeler* 24 EX-27 6 FINANCIAL DATA SCHEDULE
5 1,000 9-MOS MAR-31-1999 APR-01-1998 DEC-31-1998 36,499 0 91,280 1,518 42,565 14,634 71,428 46,813 315,376 108,072 528,169 0 0 0 (325,241) 315,376 369,525 369,525 123,007 158,868 196,883 0 33,106 (837) 486 (1,323) 0 0 0 (1,323) (0.01) (0.01)
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