Exhibit 10.2


 


ASSET PURCHASE AGREEMENT


 


 


dated as of


 


 


April 16, 2009


 


 


among


 


 


HARRIS CORPORATION,


 


TYCO ELECTRONICS GROUP S.A.


 


and, solely for the limited purposes of Section 11.09,


 


TYCO ELECTRONICS LTD.


 

















 


TABLE OF CONTENTS


 


	
   

  	
  PAGE

  
	
   

  	
   

  
	
  ARTICLE 1

  	
   

  
	
  DEFINITIONS

  	
   

  
	
   

  	
   

  
	
  Section 1.01. 
  Definitions

  	
  1

  
	
  Section 1.02. 
  Other Definitional and
  Interpretative Provisions

  	
  17

  
	
   

  	
   

  
	
  ARTICLE 2

  	
   

  
	
  PURCHASE AND SALE

  	
   

  
	
   

  	
   

  
	
  Section 2.01. 
  Purchase and Sale

  	
  18

  
	
  Section 2.02. 
  Excluded Assets

  	
  20

  
	
  Section 2.03. 
  Assumed Liabilities

  	
  22

  
	
  Section 2.04. 
  Excluded Liabilities

  	
  23

  
	
  Section 2.05. 
  Assignment of Contracts and Rights

  	
  26

  
	
  Section 2.06. 
  Purchase Price; Allocation of
  Purchase Price

  	
  27

  
	
  Section 2.07. 
  Closing

  	
  28

  
	
  Section 2.08. 
  Closing Balance Sheet; Purchase
  Price Adjustment

  	
  30

  
	
  Section 2.09. 
  GST and QST Elections

  	
  34

  
	
  Section 2.10. 
  Irish Purchased Assets

  	
  34

  
	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
  REPRESENTATIONS AND
  WARRANTIES OF SELLER

  	
   

  
	
   

  	
   

  
	
  Section 3.01. 
  Corporate Existence and Power

  	
  34

  
	
  Section 3.02. 
  Corporate Authorization; Binding
  Effect

  	
  34

  
	
  Section 3.03. 
  Governmental Authorization

  	
  35

  
	
  Section 3.04. 
  Subsidiary Capital Structure

  	
  36

  
	
  Section 3.05. 
  Noncontravention

  	
  36

  
	
  Section 3.06. 
  Financial Information; Undisclosed
  Liabilities

  	
  37

  
	
  Section 3.07. 
  Absence of Certain Changes

  	
  37

  
	
  Section 3.08. 
  Material Contracts

  	
  38

  
	
  Section 3.09. 
  Government Contracts

  	
  40

  
	
  Section 3.10. 
  Litigation

  	
  41

  
	
  Section 3.11. 
  Compliance with Laws and Court
  Orders

  	
  41

  
	
  Section 3.12. 
  Properties

  	
  42

  
	
  Section 3.13. 
  Title to Purchased Assets;
  Sufficiency

  	
  42

  
	
  Section 3.14. 
  Intellectual Property

  	
  42

  
	
  Section 3.15. 
  Taxes

  	
  45

  
	
  Section 3.16. 
  Finders’ Fees

  	
  45

  
	
  Section 3.17. 
  Personnel

  	
  46

  
	
  Section 3.18. 
  Labor Matters

  	
  48

  
	
  Section 3.19. 
  Environmental Compliance

  	
  49

  
	
  Section 3.20. 
  Permits

  	
  51

  
	
  Section 3.21. 
  Customers and Suppliers

  	
  52

  



 


i

















 


	
  Section 3.22. 
  Certain Obligations

  	
  52

  
	
  Section 3.23. 
  Product Warranty

  	
  52

  
	
  Section 3.24. 
  Illegal Payments

  	
  52

  
	
  Section 3.25. 
  Affiliates Transactions

  	
  53

  
	
  Section 3.26. 
  Exclusivity of Representations

  	
  53

  
	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
  REPRESENTATIONS AND
  WARRANTIES OF BUYER

  	
   

  
	
   

  	
   

  
	
  Section 4.01. 
  Corporate Existence and Power

  	
  53

  
	
  Section 4.02. 
  Corporate Authorization; Binding
  Effect

  	
  53

  
	
  Section 4.03. 
  Government Authorization

  	
  54

  
	
  Section 4.04. 
  Noncontravention

  	
  54

  
	
  Section 4.05. 
  Financing

  	
  55

  
	
  Section 4.06. 
  Investigation by Buyer; Seller’s
  Liability

  	
  55

  
	
  Section 4.07. 
  Litigation

  	
  55

  
	
  Section 4.08. 
  Finders’ Fees

  	
  55

  
	
  Section 4.09. 
  Taxes

  	
  56

  
	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
  COVENANTS OF SELLER

  	
   

  
	
   

  	
   

  
	
  Section 5.01. 
  Conduct of the Business

  	
  56

  
	
  Section 5.02. 
  Exclusive Dealings

  	
  58

  
	
  Section 5.03. 
  Access to Information

  	
  58

  
	
  Section 5.04. 
  Competitive Activity;
  Confidentiality

  	
  59

  
	
  Section 5.05. 
  Title Insurance; Memorandum of
  Lease, Estoppel Certificates

  	
  61

  
	
  Section 5.06. 
  Insurance Proceeds

  	
  62

  
	
  Section 5.07. 
  Release of Liens

  	
  62

  
	
  Section 5.08. 
  Transferred New York Tower Sites

  	
  62

  
	
  Section 5.09. 
  Sales of SONY Excluded Assets

  	
  63

  
	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
  COVENANTS OF BUYER

  	
   

  
	
   

  	
   

  
	
  Section 6.01. 
  Confidentiality

  	
  63

  
	
  Section 6.02. 
  Access

  	
  64

  
	
  Section 6.03. 
  Cooperation on SONY Litigation

  	
  65

  
	
  Section 6.04. 
  Post-Closing Obligations for Leases

  	
  66

  
	
  Section 6.05. 
  Replacement of Certain Obligations

  	
  66

  
	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
  COVENANTS OF BUYER AND
  SELLER

  	
   

  
	
   

  	
   

  
	
  Section 7.01. 
  Reasonable Best Efforts; Further
  Assurances

  	
  68

  
	
  Section 7.02. 
  Certain Filings

  	
  69

  
	
  Section 7.03. 
  Public Announcements

  	
  70

  
	
  Section 7.04. 
  Notification of Certain Matters

  	
  70

  



 


ii

















 


	
  Section 7.05. 
  Intellectual Property

  	
  70

  
	
  Section 7.06. 
  WARN Act

  	
  73

  
	
  Section 7.07. 
  Nonsolicitation

  	
  73

  
	
  Section 7.08. 
  Certain Matters

  	
  74

  
	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
  TAX MATTERS

  	
   

  
	
   

  	
   

  
	
  Section 8.01. 
  Allocation of Taxes to Seller

  	
  74

  
	
  Section 8.02. 
  Allocation of Taxes to Buyer

  	
  75

  
	
  Section 8.03. 
  Allocation of Straddle Period Taxes

  	
  76

  
	
  Section 8.04. 
  Tax Returns; Payment of Taxes; Carrybacks

  	
  76

  
	
  Section 8.05. 
  Tax Contests

  	
  77

  
	
  Section 8.06. 
  Indemnification

  	
  78

  
	
  Section 8.07. 
  Refunds

  	
  80

  
	
  Section 8.08. 
  Assistance And Cooperation

  	
  81

  
	
  Section 8.09. 
  Tax Records

  	
  81

  
	
  Section 8.10. 
  Dispute Resolution

  	
  81

  
	
  Section 8.11. 
  Payment

  	
  81

  
	
  Section 8.12. 
  Adjustment

  	
  82

  
	
  Section 8.13. 
  Termination Of Tax Allocation Agreements

  	
  82

  
	
  Section 8.14. 
  CFC Legal Proceedings

  	
  82

  
	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
  EMPLOYEE BENEFITS

  	
   

  
	
   

  	
   

  
	
  Section 9.01. 
  U.S. Business Employees and Employee Benefits

  	
  83

  
	
  Section 9.02. 
  Canadian Business Employees. Transfer and Terms
  and Conditions of Employment

  	
  87

  
	
  Section 9.03. 
  Irish Business Employees

  	
  88

  
	
  Section 9.04. 
  Other Business Employees

  	
  89

  
	
  Section 9.05. 
  Benefits Obligations

  	
  90

  
	
  Section 9.06. 
  Indemnity

  	
  91

  
	
  Section 9.07. 
  Transferred Employees

  	
  92

  
	
  Section 9.08. 
  Consultations

  	
  92

  
	
  Section 9.09. 
  Assistance and Cooperation

  	
  92

  
	
  Section 9.10. 
  No Third Party Beneficiaries

  	
  92

  
	
  Section 9.11. 
  Wage Reporting

  	
  93

  
	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
  CONDITIONS TO CLOSING

  	
   

  
	
   

  	
   

  
	
  Section 10.01. 
  Conditions to Obligations of Buyer and Seller

  	
  93

  
	
  Section 10.02. 
  Conditions to Obligation of Buyer

  	
  93

  
	
  Section 10.03. 
  Conditions to Obligation of Seller

  	
  94

  
	
  Section 10.04. 
  Frustration of Closing Conditions

  	
  94

  



 


iii

















 


	
  ARTICLE 11

  	
   

  
	
  SURVIVAL;
  INDEMNIFICATION

  	
   

  
	
   

  	
   

  
	
  Section 11.01. 
  Survival

  	
  94

  
	
  Section 11.02. 
  Indemnification by Seller

  	
  95

  
	
  Section 11.03. 
  Indemnification by Buyer

  	
  96

  
	
  Section 11.04. 
  Damages Net of Insurance, Etc.

  	
  97

  
	
  Section 11.05. 
  Procedures; Third Party Claims

  	
  97

  
	
  Section 11.06. 
  Calculation of Damages

  	
  99

  
	
  Section 11.07. 
  Environmental Indemnity for Transferred New York
  Tower Sites

  	
  99

  
	
  Section 11.08. 
  Environmental Procedures

  	
  99

  
	
  Section 11.09. 
  Parent Guarantee

  	
  100

  
	
  Section 11.10. 
  Exclusive Remedy/Waiver

  	
  101

  
	
   

  	
   

  
	
  ARTICLE 12

  	
   

  
	
  TERMINATION

  	
   

  
	
   

  	
   

  
	
  Section 12.01. 
  Grounds for Termination

  	
  101

  
	
  Section 12.02. 
  Effect of Termination

  	
  102

  
	
   

  	
   

  
	
  ARTICLE 13

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section 13.01. 
  Notices

  	
  102

  
	
  Section 13.02. 
  Amendments and Waivers

  	
  104

  
	
  Section 13.03. 
  Disclosure Schedule References

  	
  104

  
	
  Section 13.04. 
  Expenses

  	
  104

  
	
  Section 13.05. 
  Successors and Assigns

  	
  104

  
	
  Section 13.06. 
  Governing Law

  	
  104

  
	
  Section 13.07. 
  Jurisdiction

  	
  104

  
	
  Section 13.08. 
  WAIVER OF JURY TRIAL

  	
  105

  
	
  Section 13.09. 
  Counterparts; Effectiveness; Third Party
  Beneficiaries

  	
  105

  
	
  Section 13.10. 
  Entire Agreement

  	
  106

  
	
  Section 13.11. 
  Bulk Sales Laws

  	
  106

  
	
  Section 13.12. 
  No Strict Construction

  	
  106

  
	
  Section 13.13. 
  Severability

  	
  106

  
	
  Section 13.14. 
  Specific Performance

  	
  106

  
	
  Section 13.15. 
  Payment in U.S. Dollars

  	
  106

  



 


	
  Exhibits:

  	
   

  	
   

  
	
  Exhibit A

  	
  Assignment and Assumption Agreement

  	
   

  
	
  Exhibit B

  	
  Sublease Agreement

  	
   

  
	
  Exhibit C

  	
  Transition Services Agreement

  	
   

  
	
  Exhibit D

  	
  Agreed Principles

  	
   

  



 


iv

















 


	
  Exhibit E

  	
  Working
  Capital Limit Calculations

  	
   

  
	
  Exhibit F

  	
  Subcontract

  	
   

  
	
  Exhibit G

  	
  Guarantee
  of Seller Parent

  	
   

  



 


Schedules:


Disclosure
Schedules


 


v














 


ASSET PURCHASE
AGREEMENT


 


This
ASSET PURCHASE AGREEMENT (this “Agreement”)
dated as of April 16, 2009 among Harris Corporation, a Delaware
corporation (“Buyer”), Tyco
Electronics Group S.A., a company organized under the laws of Luxembourg (“Seller”), and, solely for the limited
purposes of Section 11.09, Tyco Electronics Ltd., a corporation
incorporated under the laws of Bermuda and any successor thereto.


 


W I T N E S
S E T H :


 


1.             WHEREAS, through certain of its
Affiliates and within its wireless systems segment, Seller conducts a worldwide
wireless network systems business which designs, builds, distributes, maintains
and supplies wireless communications systems, including land mobile radio and
broadband equipment systems and networks and equipment for the public safety,
utility, federal, military and commercial markets (the “Business”); and


 


2.             WHEREAS, Buyer desires to purchase
the Business from Seller and its Affiliates, and Seller and its Affiliates
desire to sell the Business to Buyer, subject to the terms and conditions
hereinafter set forth;


 


3.             The parties hereto agree as
follows:


 


ARTICLE 1

DEFINITIONS


 


Section 1.01. 
Definitions.   (a) The
following terms, as used herein, have the following meanings:


 


“Affiliate” means, with respect to any
Person, any other Person directly or indirectly controlling, controlled by, or
under common control with such other Person. 
The term “control” (including the terms “controlling,” “controlled by”
and “under common control with”) means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by Contract or
otherwise.


 


“Antitrust Laws” means the HSR Act, the
Sherman Act, as amended, the Clayton Act, as amended, and any other United
States federal or state or foreign or supranational Applicable Laws that are
designed to prohibit, restrict or regulate actions having the purpose or effect
of monopolization, lessening of competition or restraint of trade.


 


“Applicable Law” means, with respect to any
Person, any federal, state, provincial, foreign, supranational or local law
(statutory, common or otherwise), constitution, treaty, convention, ordinance,
code, rule, regulation, order,


 

















 


injunction,
judgment, decree, ruling or other similar requirement enacted, adopted,
promulgated or applied by a Governmental Authority that is binding upon or
applicable to such Person or such Person’s assets or properties, as amended
unless expressly specified otherwise.


 


“Assignment and Assumption Agreement” means
an assignment and assumption agreement to be entered into by Seller or its
Affiliate, as applicable, and Buyer (or, subject to Section 13.05, Buyer’s
designated Affiliate(s)) at the Closing in substantially the form of Exhibit A
attached hereto.


 


“Assumed Intercompany Payables” means the
trade payables incurred in the ordinary course of business due and payable by
the Business to Seller and its Affiliates, but only to the extent included in
the calculation of Final Closing Working Capital.


 


“Assumed Intercompany Receivables” means the
trade receivables incurred in the ordinary course of business due and owing to
the Business from Seller and its Affiliates, but only to the extent included in
the calculation of Final Closing Working Capital.


 


“Autoliv Agreement” means the Asset Purchase
Agreement between Autoliv ASP, Inc. and Seller dated July 28, 2008.


 


“Benefit Plan” means each “employee benefit
plan” as defined in Section 3(3) of ERISA (whether or not subject to ERISA)
and each other bonus, stock option, stock purchase, equity, severance,
retention, salary continuation, pension, retirement income, profit sharing,
employment, consulting, collective bargaining, change-in-control, fringe
benefit, vacation pay, sick leave, deferred compensation, perquisite, tuition
reimbursement, incentive or other employee compensation or benefit plan,
agreement, arrangement, program, policy or trust funding vehicle, whether
written or unwritten, contributed to or maintained by Seller or any of its
Affiliates in connection with the Business or for the benefit of any Business
Employee, or with respect to which the Business may have any Liability.  For the avoidance of doubt, for purposes
hereof a “collective bargaining” plan or arrangement shall not include any
works council, national union or similar body or organization, or the statutory
obligations pertaining thereto.


 


“Business Confidential Information”  means all confidential information that
relates to the Business.


 


“Business Day” means a day, other than
Saturday, Sunday or other day on which commercial banks in New York, New York
are authorized or required by Applicable Law to close.


 


“Business Employee” means each individual (A) who
is employed by Seller or any of its Affiliates and is primarily employed in the
Business as of the date hereof and remains so employed as of the date
immediately prior to the Closing Date, including any such individual on
short-term disability, pregnancy or


 


2

















 


parental
leave or any other authorized leave of absence immediately prior to the Closing
Date; or (B) who is currently not an employee of Seller or its Affiliates,
receives an offer of employment to be primarily employed in the Business in the
ordinary course of business consistent with past practice after the date hereof
or has been made such an offer prior to the date hereof and commences his or
her employment prior to, on or after the Closing Date (provided that, with respect to any such
individual with an annual base salary in excess of $125,000, Buyer has provided
written consent to such employment). 
Each individual who is employed by Seller or any of its Affiliates and
is primarily employed in the Business as of the date identified on Schedule
1.01(a)(i)(a) is identified on such Schedule.  Schedule 1.01(a)(i)(b) identifies those
employees who, notwithstanding anything to the contrary in this Agreement,
shall not be deemed to be Business Employees. The term “Business Employee”
shall exclude any other employee, any Former Employee and, except in the case
of the Irish Business Employees and subject to any obligations of Buyer or an
Affiliate of Buyer under Applicable Law (including the Transfer Regulations),
any individual who was, immediately prior to the Closing Date, on long-term
disability, unauthorized leave of absence or lay-off with or without recall
rights.


 


“Canadian Business Employee” means any
Business Employee based in Canada and ordinarily working in Canada.


 


“CERCLA” means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, and
any rules or regulations promulgated thereunder.


 


“Closing Cash” means the aggregate bank
balance of cash, checks, money orders, marketable securities, short-term instruments
and other cash equivalents, funds in time and demand deposits or similar
accounts, and any evidence of Indebtedness issued or guaranteed by any
Governmental Authority of the Business as of the Closing, calculated in a
manner consistent with the Agreed Principles. 
For the avoidance of doubt, book overdrafts (outstanding checks in
excess of cash balances in bank) will be included in accounts payable.


 


“Closing Date” means the date of the
Closing.


 


“Code” means the Internal Revenue Code of
1986, as amended, and the rules and regulations promulgated thereunder.


 


“Commercially Reasonable Manner” means a
commercially reasonable, cost-effective method for investigation, remediation,
removal, corrective action, containment, monitoring and/or other response action,
determined from the perspective of a reasonable business person acting without
regard to the availability of indemnification under this Agreement to achieve
compliance with Environmental Laws in effect as of the time such actions are
being performed (and with respect to the Leased Real Property, to achieve
compliance with any Real Property Lease as in effect as of the Closing Date or,
if less restrictive, as


 


3

















 


amended
thereafter), including the reasonable use of risk-based remedies, institutional
or engineering controls or deed restrictions; provided
that such remedies, controls or restrictions do not prevent or inhibit any
commercial or industrial use (as applicable) of the Real Property at the time
such actions are being performed and provided, further, that, with respect to any Leased
Real Property, the applicable lessor consents to any such remedies, controls or
restrictions to the extent such consent is required by the relevant Real
Property Lease or any Applicable Law.


 


“Contest” means any audit, court proceeding
or other dispute with respect to any Tax matter that affects the Subsidiary,
the Non-Entity Business or the Purchased Assets.


 


“Contract” means any contract, agreement,
lease, license, commitment, sale or purchase order or other legally binding
proposal, arrangement or understanding, in each case, whether written or oral.


 


“Divested Business” means (i) with
respect to Seller and its Affiliates, any business unit or product line
included in the Retained Business and (ii) with respect to Buyer and its
Affiliates, any business unit or product line included in the Business, in each
case, which is sold, conveyed or otherwise transferred to any other Person
whether by a stock sale, an asset sale, or a merger or consolidation.


 


“DTX Patents and DTX Trademarks” means those
Patents and Trademarks identified as such on Schedule 1.01(a)(ii).


 


“Due Diligence Materials” means any of the
information, including replacement and other cost estimates and financial and
other projections, made available to Buyer, its Affiliates or its
representatives and set forth in materials contained in the virtual data room
related to the transactions contemplated hereby and established by Seller
through the Intralinks datasite, in presentations by the management of the
Business, in “break-out” discussions with the management of the Business, in
Seller’s responses to questions submitted by or on behalf of Buyer, its
Affiliates or its representatives, and in materials prepared by or on behalf of
Seller for purposes of the transactions contemplated hereby.


 


“Environment” means soil, surface waters,
groundwater, land, stream sediments, surface or subsurface strata, ambient air,
indoor air or indoor air quality.


 


“Environmental Conditions” means any (i) violation
of or Liability under any Environmental Law, (ii) Release of any Hazardous
Substance at, on, in, under or migrating to or from any location, or (iii) disposal,
transportation, treatment, storage, reclamation or recycling, or arrangement
for any of the foregoing, in the case of each of clauses (i), (ii) and
(iii), in connection with or relating to the Business, the Purchased Assets or
the Real Property.


 


4

















 


“Environmental Laws” means any Applicable
Law or any agreement with any Governmental Authority relating to the
Environment, to public or workplace health or safety to the extent relating to
Hazardous Substances, or to the manufacture, distribution, handling, transport,
treatment, storage, disposal, discharge, emission, Release or threatened
Release of any Hazardous Substance.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended, and the rules and regulations
promulgated thereunder.


 


“ERISA Affiliate” of any entity means any
other entity, trade or business which, together with such entity, trade or
business, would be treated as a single employer under Section 414 of the
Code.


 


“Excess Transfer Taxes” means the amount of
Transfer Taxes in excess of the amount of Transfer Taxes that would have been
incurred in connection with the sale of the Business if, in lieu of a sale of
the assets of M/A-COM, the shares of M/A-COM had been sold by Seller to Buyer.


 


“Excluded Environmental Liabilities” means
all Liabilities arising under any Environmental Law or relating to the Release
of Hazardous Substances to the extent (i) arising in connection with any
real property or facility owned, leased or operated by the Business prior to
the Closing Date, other than  any
Real Property or Purchased Asset, or (ii) arising out of the pre-Closing
disposal, transportation, treatment, storage, reclamation or recycling, or
arrangement for any of the foregoing, of Hazardous Substances at or to any
third-party waste disposal, treatment, storage, reclamation or recycling site
by or in connection with the Business.


 


“Excluded Marks” means any name, mark or
symbol that includes, is identical to or is confusingly similar to, any of the
trademarks, service marks, domain names, trade names or other indicia of origin
set forth on Schedule 1.01(a)(vi) or any other trademark, service mark,
domain name, trade name or other indicia of origin characterized as an Excluded
Asset.


 


“Excluded Services” means tax, legal,
treasury, internal audit, financial reporting, public relations, investor
relations, Tyco Electronics’s marketing and branding, environmental
consultancy, fleet management, risk management, real estate management,
business development and export compliance.


 


“FAR” means the U.S. Federal Acquisition
Regulation, codified as amended at 48 C.F.R. Chapter 1.


 


“Final Determination” means, with respect to
any Taxes, (i) the expiration of the statute of limitations on both
assessments and refunds of such Taxes or (ii) the final settlement of
Taxes through agreement of the parties to an administrative or judicial
proceeding or by an administrative or judicial decision from which no appeal
can be taken or the time for taking any such appeal has expired.


 


5

















 


“Former Employee” means any former employee
of the Business as of the date immediately prior to the Closing Date, including
retirees and, subject to Applicable Law (including the Transfer Regulations),
individuals on long-term disability.  For
the avoidance of doubt and subject to the same, the term “Former Employee”
shall include any Business Employee who terminates his or her employment with
Seller or any of its Affiliates after the date hereof and prior to the Closing
Date.


 


“GAAP” means generally accepted accounting
principles in the United States in effect as of the date hereof or, with
respect to any financial statements, the date such financial statements were
prepared.


 


“Government Contract” means any Contract
entered into by Seller or any of its Affiliates for the provision by the
Business of goods or services to (i) a U.S. federal Governmental
Authority; (ii) a prime contractor to a U.S. federal Governmental
Authority; or (iii) any subcontractor relating to a Contract to which a
U.S. federal Governmental Authority is a party.


 


“Government Contract Bid” means any offer,
bid, proposal or quote to obtain a Government Contract.


 


“Governmental Authority” means any
transnational, domestic or foreign federal, state, provincial or local
governmental authority, department, court, agency or official, including any
political subdivision thereof or arbitral tribunal whose decisions have the
same force and effect as law.


 


“GST” means the Goods and Services Tax
imposed pursuant to Part IX of the Excise Tax Act (Canada) and any related
interest.


 


“Hazardous Substances” means any pollutant,
contaminant, waste or chemical or any toxic, radioactive, ignitable, corrosive,
reactive or otherwise hazardous substance, waste or material or any substance,
waste or material having any constituent elements displaying any of the
foregoing characteristics including petroleum, its derivatives, by-products and
other hydrocarbons, asbestos, asbestos-containing materials and polychlorinated
biphenyls and any substance, waste or material regulated under any
environmental law.


 


“HSR Act” means the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder.


 


“Income Taxes” means all Taxes based upon,
measured by or calculated with respect to (i) gross or net income or gross
or net receipts or profits (including any capital gains Taxes, minimum Taxes
and any Taxes on items of tax preference, but not including sales, use, goods
and services, value added, real or personal property transfer or other similar
Taxes), (ii) multiple bases (including corporate franchise, doing business
or occupation Taxes) if one or more of the bases upon which such Tax may be
based upon, measured by or calculated with respect to is described in clause (i) above
or (iii) withholding Taxes (other than


 


6

















 


sales
or use Taxes) measured by, or calculated with respect to, any payments or
distributions (other than wages).


 


“Income Tax Return” means any Tax Return relating
to Income Taxes.


 


“Indebtedness” of any Person means, without
duplication:  either (i) any
Liability of any Person (1) for borrowed money (including the current
portion thereof), (2) under any reimbursement obligation relating to a
letter of credit, bankers’ acceptance or note purchase facility,  (3) evidenced by a bond, note,
debenture or similar instrument (including a purchase money obligation), (4) for
all or any part of the deferred purchase price of property or services (other
than trade payables and deferred revenues), including any “earnout” or similar
payments, or (5) under interest rate swap, hedging or similar agreements
(other than under an Amendment to Master Purchase Agreement dated December 1,
2008, by and among Hitachi Kokusai Electric, Inc., Goyo Electronics Co,
Ltd., and M/A-COM, Inc.) or (ii) any Liability of others described in
the preceding clause (i) that such Person has guaranteed, that is recourse
to such Person or any of its assets or that is otherwise its Liability or that
is secured in whole or in part by the assets of such Person.  For purposes of this Agreement, Indebtedness
includes any and all accrued interest, success fees, prepayment premiums,
make-whole premiums or penalties and fees or expenses (including attorneys’ fees)
associated with the prepayment or retirement of any Indebtedness.  Notwithstanding anything to the contrary
contained herein, the following shall not be considered Indebtedness: (i) any
Liability under any lease required to be classified as a capitalized lease
obligation in accordance with GAAP or (ii) any Liability under any Parent
Guarantee, Seller Surety Bond, Parent LofC and Related Obligation or Contract.


 


“Information Systems” means all computer
hardware, databases and data storage systems, computer, data, database and
communications networks (other than the Internet, public switched telephone
network and other public communication networks), architecture interfaces and
firewalls (whether for data, voice, video or other media access, transmission or
reception) and other apparatus used to create, store, transmit, exchange or
receive information in any form.  For the
avoidance of doubt, Information Systems shall not include any Software.


 


“Intellectual Property Rights” means all of
the following U.S., state and foreign intellectual property:  (i) patents, applications for patents,
and invention disclosures (“Patents”);
(ii) trademarks, service marks, brand names, trade names, certification
marks, trade dress, domain names and uniform resource locators, and other
indications of origin, the goodwill associated with the foregoing and
registrations, and applications to register, the foregoing, and all common-law
rights relating thereto (“Trademarks”);
(iii) trade secrets, inventions (whether patentable or not), industrial
designs, discoveries, improvements, ideas, formulae, methods, techniques,
processes, proprietary information, customer lists, Software (and related
documentation), technical information, rights in data collections, know-how and
confidential information (“Know-How”);
(iv) copyright rights,


 


7

















 


whether
registered or not; and registrations or applications for registration of
copyrights; (v) database rights; (vi) mask works and design rights; (vii) other
intellectual or industrial property rights and foreign equivalent or
counterpart rights and forms of protection of a similar or analogous nature to
any of the foregoing or having similar effect in any jurisdiction throughout
the world; and (viii) registrations and applications for registration of
any of the foregoing, including any renewals, extensions, continuations (in
whole or in part), divisionals, reexaminations or reissues or equivalent or
counterpart thereof.


 


“Irish Business Employee” means any Business
Employee based in Ireland and ordinarily working in Ireland.


 


“Irish Purchased Assets” means those
Purchased Assts arising from, related to, associated with or used primarily in
the Business in Ireland.


 


“IRS” means the Internal Revenue Service of
the United States of America.


 


“knowledge” of any Person that is not an
individual means the actual knowledge of such Person’s officers after
reasonable inquiry of appropriate direct reports.  Notwithstanding the foregoing, where any
representation or warranty or other provision contained in this Agreement is
expressly qualified by reference to the “knowledge of Seller”, such knowledge
means the actual knowledge of each individual listed on Schedule 1.01(a)(iv) after
reasonable inquiry by such individual of employees of Seller and its Affiliates
who have provided information to the Buyer or are directly responsible for the
areas covered by the relevant representation and warranty.


 


“Leased Real Property” means the real
property subject to the Real Property Leases.


 


“Legal Proceeding” means any actions, formal
demands or charges, or complaints, in each case made by or before any
Governmental Authority, including any suits, proceedings, arbitrations,
hearings, audits, investigations or claims of any kind (whether civil,
criminal, administrative, investigative, or at law or in equity).


 


“Liabilities” means any and all debts,
liabilities, commitments and obligations whether accrued or fixed, known or
unknown, absolute or contingent, liquidated or unliquidated, matured or
unmatured, determined, determinable or otherwise, regardless of when asserted
or by whom and whether or not the same would be required to be recognized under
GAAP.


 


“Licensed Intellectual Property Rights”
means (i) all Intellectual Property Rights (other than any Software) owned
by a third party and licensed or sublicensed to Seller or an Affiliate of
Seller and held for use in or used, in each case, primarily in the conduct of
the Business and (ii) all Transferred Software


 


8

















 


owned
by a third party and licensed or sublicensed to Seller or an Affiliate of
Seller.


 


“Lien” means, with respect to any property
or asset, any mortgage, lien, pledge, charge, security interest, encumbrance,
claim, option, encroachment, covenant, condition, easement, right of way,
equitable interest, deed of trust, restriction on transfer, right of first
refusal or other preferential right, title defect or other restriction or
adverse claim of any kind in respect of such property or asset.  For the purposes of this Agreement, a Person
shall be deemed to own subject to a Lien any property or asset which it has
acquired or holds subject to the interest of a vendor or lessor under any conditional
sale agreement, capital lease or other title retention agreement relating to
such property or asset.


 


“M/A-COM” means M/A-COM, Inc., a
Florida corporation and indirect subsidiary of Seller.


 


“M/A-COM Canada” means M/A-COM Private Radio
System Canada Corp., a Canadian corporation.


 


“Material Adverse Effect” means any
circumstance, change, occurrence, event, development or effect that,
individually or in the aggregate with all other circumstances, changes,
occurrences, events, developments and effects, has resulted in or would
reasonably be expected to result in, a material adverse effect on the assets,
properties, business, operations, results of operations or financial condition
of the Business; provided, however that the following circumstances,
changes, occurrences, events, developments or effects shall not be considered
for purposes of determining whether a “Material Adverse Effect” has
occurred:  (i) changes in economic
or political conditions or the financing, banking, currency or capital markets
in general to the extent that the same do not materially disproportionately
affect the Business (in comparison to other businesses operating in the same
industry, markets and geographical areas as the Business); (ii) changes in
Applicable Laws or interpretations thereof or changes in accounting
requirements or principles (including GAAP) to the extent that the same do not
materially disproportionately affect the Business (in comparison to other
businesses operating in the same industry, markets and geographical areas as
the Business); (iii) changes affecting the industry, markets or
geographical areas in which the Business operates to the extent that the same
do not materially disproportionately affect the Business (in comparison to
other businesses operating in the same industry, markets and geographical areas
as the Business); (iv) the announcement or pendency of the transactions
contemplated by this Agreement or other communication by Buyer or any of its
Affiliates of its plans or intentions (including in respect of employees) with
respect to the Business, including losses or threatened losses of employees,
customers, suppliers, distributors or others having relationships with the
Business; (v) the consummation of the transactions contemplated by this
Agreement or any actions by Buyer or Seller taken pursuant to and in accordance
with this Agreement (provided
that any circumstances, occurrences, events, developments and effects


 


9

















 


in
existence or that have taken place prior to the taking of any action by Buyer
or Seller pursuant to this Agreement and that Buyer or Seller are made aware
of, directly or indirectly, as a result of any actions taken by Buyer or Seller
pursuant to this Agreement, including any pre-existing breaches of any
Contracts that are raised by any third party in connection with the consent
solicitation process, may be a “Material Adverse Effect”); (vi) the
failure of the Business to take any act for which Buyer’s prior written consent
is required under Section 5.01(b) and for which such consent was
sought by Seller but not received, but only to the extent that Seller can
demonstrate that such act, if taken by the Business, would have prevented the
circumstance, change, occurrence, development or event in question; or (vii) any
failure by the Business to meet any internal projections or forecasts and
seasonal changes in the results of operations of the Business (provided that the underlying cause or
causes of such failure to meet such projections or forecasts may constitute a
“Material Adverse Effect”).


 


“Non-Entity Business” means the Business
excluding the Business conducted by the Subsidiary.


 


“Object Code” means computer software that
is substantially or entirely in binary form and that is intended to be directly
executable by a computer after suitable processing and linking but without any
intervening steps of compilation or assembly.


 


“Owned Intellectual Property Rights” means (i) the
Intellectual Property Rights (other than Patents and Software) owned by Seller
or an Affiliate of Seller and held for use in or used, in each case, primarily
in the conduct of the Business and (ii) all Transferred Software owned by
Seller or an Affiliate of Seller.


 


“P7200 Trigger”  has the meaning set forth on Schedule 1.01(a)(vii).


 


“Permit” means each permit, certificate,
license, consent, approval, exemption, waiver or authorization issued or
granted by any Governmental Authority.


 


“Permitted Liens” means (i) Liens for
Taxes not yet due or, if due, being contested in good faith; (ii) mechanic’s,
materialman’s, repairer’s and other similar Liens arising or incurred in the
ordinary course of business that are not yet due and payable or, if due, are
being contested in good faith; (iii) in the case of leased or subleased
properties and assets, Liens on the lessors’ or prior lessors’ interests; (iv) in
the case of Owned Real Property, (x) easements, covenants, conditions,
restrictions and other similar matters, whether of record or not, affecting
title to the Owned Real Property and other encroachments and minor title and
survey defects to the extent that the same do not materially interfere with the
present use of such Owned Real Property in the conduct of the Business, and
matters that are disclosed on Schedule 1.01(a)(v) or would be disclosed on
an accurate survey of such Real Property and (y) zoning, building codes
and other


 


10

















 


land
use laws regulating the use or occupancy of the Owned Real Property or the
activities conducted thereon which are imposed by any Governmental Authority
and (v) Liens which do not materially detract from the value of a
Purchased Asset or a property or asset used in the conduct of the Business, or
materially interfere with any present or intended use of a Purchased Asset or a
property or asset used in the conduct of the Business.


 


“Person” means an individual, corporation,
company, partnership, limited liability company, association, trust, joint
venture or other entity or organization, including a Governmental Authority.


 


“QST” means the Quebec Sales Tax imposed
pursuant to the Act respecting the Quebec sales tax (Quebec) and any related
interest or penalties.


 


“Real Property” means the Owned Real
Property and the Leased Real Property.


 


“Release” means any releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, migrating, disposing or dumping of a Hazardous Substance into the
Environment (including the abandonment or discarding of barrels, containers and
other closed receptacles containing any Hazardous Substance).


 


“Relevant Products” means the following
models of products currently sold by the Business:  P5300, P5400, P7100, P7200, P7300, M5300,
M7200 and M7300.


 


“Representatives” of any Person means such
Person’s directors, managers, members, officers, employees, agents, advisors
and representatives (including attorneys, accountants, consultants, financial
advisors, financing sources and any representatives of such advisors or
financing sources).


 


“Resale Exemption Certificates” means all
fully completed and executed resale exemption certificate and other applicable
exemption certificate in respect of the Purchased Assets, in each case
acceptable to the states and localities in which Purchased Assets are to be
transferred and obtainable under Applicable Law.


 


“Retained Business” means any business of
Seller or any of its Affiliates other than the Business.


 


“SEC” means the United States Securities and
Exchange Commission.


 


“Securities Act” means the Securities Act of
1933, as amended from time to time, and the rules and regulations
promulgated thereunder.


 


“Seller Parent” means Tyco Electronics Ltd.,
a corporation incorporated under the laws of Bermuda (or Switzerland upon Tyco
Electronics Ltd.’s


 


11

















 


shareholders
approval of the proposed change of place of incorporation from Bermuda to
Switzerland and Tyco Electronics Ltd.’s implementation of such change following
such approval) and any successor thereto.


 


“Seller Product” means any good or service,
or any component thereof, which is made, supplied, sold, developed or otherwise
produced by or on behalf of any Retained Business, including any such good,
service or component which is supplied to the Business or any other Person by any
Retained Business.


 


“Seller Shared Program Costs” has the
meaning set forth in Schedule 1.01(a)(vi).


 


“Selling Expenses” means all unpaid costs,
fees and expenses of outside professionals incurred by Seller or any of its
Affiliates or that any of the foregoing have agreed to pay relating to the
process of selling the Business, whether incurred in connection with this
Agreement or otherwise, including all legal, accounting, tax and investment
banking fees and expenses.


 


“Software” means all computer software,
including assemblers, compilers, development tools, design tools and user
interfaces, whether in Source Code or Object Code form.


 


“SONY Contract” means the Master Agreement
for the Construction, Operation & Maintenance of the New York State
Statewide Wireless Network (Contract No. CM00841 (formerly Contract No. C000102))
by and between the State of New York, acting through the Office for Technology,
and M/A-COM, dated December 6, 2004, as amended.


 


“SONY Dispute” means the matter described in
Item 2 of Pending Litigation on Schedule 3.10 and any rights, obligations,
disputes or lawsuits relating thereto.


 


“SONY Litigation” means all litigation
between Seller or any of its Affiliates on the one hand and the State of New
York and the Office for Technology on the other hand arising out of the SONY
Contract, including but not limited to the claims asserted by Tyco Electronics
Corporation and M/A-COM in Claim No. 116420 now pending in the Court of
Claims of the State of New York.


 


“Source Code” means computer software that
may be displayed or printed in human-readable form, including all related
programmer comments, annotations, flowcharts, diagrams, help text, data and
data structures, instructions, procedural, object-oriented or other
human-readable code, and that is not intended to be executed directly by a
computer without an intervening step of compilation or assembly.


 


“Straddle Period” means any taxable period
relating to Taxes that would (absent an election) include, but not end until
after, the Closing Date.


 


12

















 


“Subcontract” means a subcontract agreement
in substantially the form attached hereto as Exhibit F pursuant to
which Buyer will be performing Seller’s or its Affiliates’, as applicable,
obligations under each of the prime Government Contracts as their subcontractor
throughout the novation process of such prime Government Contracts.


 


“Sublease Agreement” means the Sublease
Agreement between M/A-COM and Buyer to be entered into at the Closing in substantially
the form attached hereto as Exhibit B.


 


“Subsidiary” means M/A-COM Poland Sp. Z
o.o., and any successor thereto.


 


“Targeted Technology” has the meaning set
forth on Schedule 6.06.


 


“Tax” means any federal, state, provincial,
county, local, or foreign tax (including Transfer Taxes), charge, fee, levy,
impost, duty, or other assessment, including income, gross receipts, excise,
employment, sales, use, transfer, goods and services, recording, license,
payroll, franchise, severance, documentary, stamp, occupation, profit, windfall
profits, environmental, highway use, commercial rent, customs duty, capital
stock, paid-up capital, profits, withholding, Social Security, single business,
unemployment, disability, real property, personal property, registration, ad
valorem, value added, escheat, abandoned property or unclaimed property,
alternative or add-on minimum, estimated, or other tax or governmental fee of
any kind whatsoever, imposed or required to be withheld by any Governmental
Authority, including any estimated payments relating thereto, any interest,
penalties, and additions imposed thereon or with respect thereto, and including
Liability for taxes of another Person under Treas. Reg. Section 1.1502-6
or similar provision of state, local or foreign law, or as a transferee or
successor, by Contract or otherwise.


 


“Tax Opinion” means an unqualified “will”
opinion of qualified tax counsel under the Tax Sharing Agreement, dated as of June 29,
2007, by and among Seller, Tyco International Ltd. and Covidien Ltd., which
opinion in form and substance is reasonably acceptable to Seller, Tyco
International Ltd. and Covidien Ltd. and upon which each of them may rely,
confirming that the transactions contemplated by this Agreement will not,
either separately or in conjunction with other actions taken by Seller, result
in any Taxes being imposed on or in connection with the distribution of
Seller’s stock and the stock of Covidien Ltd. by Tyco International Ltd. to its
shareholders on June 29, 2007 or any transactions undertaken in connection
with such distributions.


 


“Tax Return” means any report of Taxes due,
any information return with respect to Taxes, or other similar report,
statement, declaration or document required to be filed under the Code or other
Applicable Laws in respect of Taxes, any amendment to any of the foregoing, any
claim for refund of Taxes paid, and any attachments, amendments or supplements
to any of the foregoing.


 


13














 


“Taxing Authority” means any Governmental
Authority having jurisdiction over the assessment, determination, collection,
or other imposition of any Taxes.


 


“Transaction Documents” means this
Agreement, the Transition Services Agreement, the Assignment and Assumption
Agreement, each assignment and assumption of a Real Property Lease, the
Sublease Agreement, the Subcontract and any other agreements, certificates,
instruments and other documents executed and delivered pursuant to this
Agreement and the transactions contemplated by this Agreement.


 


“Transfer Regulations” means any Applicable
Law implementing the provisions of Council Directive 2001/23/EEC dated 12 March 2001.


 


“Transfer Taxes” means all stamp, transfer,
real or personal property transfer, recordation, grantee/grantor, documentary,
sales and use, goods and services, GST, QST, value added, registration,
occupation, privilege, or other such similar Taxes (other than Income Taxes),
fees and costs (including any penalties and interest) incurred in connection
with the consummation of the transactions contemplated by this Agreement.


 


“Transferred New York Tower Sites” means the
eight New York tower sites included in the Owned Real Property and identified
on Schedule 2.01(b) as Items 1 – 8 under the subcategory “Tower Sites”.


 


“Transferred Software” means the
Software  (i) owned by Seller and
its Affiliates and held for use or used, in each case, primarily in the conduct
of the Business (the “Owned Software”)
or (ii) licensed to Seller and its Affiliates and set forth on Schedule
1.01(a)(viii).


 


“Transition Services Agreement” means the
Transition Services Agreement between Seller and Buyer (or, subject to Section 13.05,
its designated Affiliate(s)) to be entered into at the Closing in substantially
the form attached hereto as Exhibit C.


 


“U.S. Business Employee” means any Business
Employee based in the United States and ordinarily working in the United
States.


 


“WARN Act” means the Worker Adjustment and
Retraining Notification Act.


 


Each of
the following terms is defined in the Section set forth opposite such
term:


 


	
  Term

  	
   

  	
  Section

  
	
  Accounting
  Referee

  	
   

  	
  2.06(b)

  
	
  Acquisition
  Transaction

  	
   

  	
  5.04(b)(ii)

  



 


14

















 


	
  Term

  	
   

  	
  Section

  
	
  Actual
  Value

  	
   

  	
  2.08(b)(iii)

  
	
  Agreed
  Principles

  	
   

  	
  2.08(a)

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  Allocation
  Statement

  	
   

  	
  2.06(b)

  
	
  Alternative
  Arrangement Costs

  	
   

  	
  2.05

  
	
  Assumed
  Compensation and Benefits

  	
   

  	
  2.03(e)

  
	
  Assumed
  Liabilities

  	
   

  	
  2.03

  
	
  Assumed
  Plans

  	
   

  	
  2.01(o)

  
	
  Audited
  Financial Statements

  	
   

  	
  3.06(a)

  
	
  Balance
  Sheet Date

  	
   

  	
  3.06(a)

  
	
  BIS

  	
   

  	
  3.03

  
	
  Business

  	
   

  	
  Recitals

  
	
  Business
  Contracts

  	
   

  	
  3.08(b)

  
	
  Buyer

  	
   

  	
  Preamble

  
	
  Buyer
  Cafeteria Plan

  	
   

  	
  9.01(g)

  
	
  Buyer
  CFC Taxes

  	
   

  	
  8.14(b)

  
	
  Buyer
  Covenant Not To Sue

  	
   

  	
  7.05

  
	
  Buyer
  Designee

  	
   

  	
  4.01

  
	
  Buyer
  Environmental Damages

  	
   

  	
  11.07

  
	
  Buyer
  Indemnitees

  	
   

  	
  11.02(a)

  
	
  Buyer
  Savings Plan

  	
   

  	
  9.01(e)

  
	
  Buyer’s
  Refunds

  	
   

  	
  8.07(b)

  
	
  Buyer’s
  Taxes

  	
   

  	
  8.02

  
	
  Canadian
  Deferred Hire Date

  	
   

  	
  9.02

  
	
  Closing

  	
   

  	
  2.07

  
	
  Closing
  Cash Amount

  	
   

  	
  2.08(b)

  
	
  Closing
  Statement

  	
   

  	
  2.08(a)

  
	
  Closing
  Working Capital

  	
   

  	
  2.08(a)

  
	
  Cobham
  Agreement

  	
   

  	
  2.02(n)

  
	
  COBRA

  	
   

  	
  9.01(b)

  
	
  Collateral
  Source

  	
   

  	
  11.04(ii)

  
	
  Communications
  Act

  	
   

  	
  3.03

  
	
  Com-Net
  Agreement

  	
   

  	
  2.02(o)

  
	
  Com-Net
  Indemnity

  	
   

  	
  11.07

  
	
  Covered
  Persons

  	
   

  	
  5.04(a)

  
	
  Damages

  	
   

  	
  11.02(a)

  
	
  DDTC

  	
   

  	
  3.03

  
	
  Deferred
  Hire Date

  	
   

  	
  9.04

  
	
  Disclosure
  Schedule

  	
   

  	
  Article 3

  
	
  Disputed
  Item

  	
   

  	
  2.08(b)

  
	
  DSS

  	
   

  	
  3.03

  
	
  Environmental
  Claims

  	
   

  	
  11.08

  



 


15

















 


	
  Term

  	
   

  	
  Section

  
	
  Excluded
  Assets

  	
   

  	
  2.02

  
	
  Excluded
  Contracts

  	
   

  	
  2.02(d)

  
	
  Excluded
  Liabilities

  	
   

  	
  2.04

  
	
  Excluded
  Plans

  	
   

  	
  2.02(f)

  
	
  Export
  Administration Regulations

  	
   

  	
  3.03

  
	
  FCC

  	
   

  	
  3.03

  
	
  Final
  Closing Working Capital

  	
   

  	
  2.08(b)

  
	
  Financial
  Statements

  	
   

  	
  3.06(a)

  
	
  Guarantee
  Trigger Event

  	
   

  	
  11.09

  
	
  High
  Value

  	
   

  	
  2.08(b)(ii)

  
	
  Indemnified
  Party

  	
   

  	
  11.05

  
	
  Indemnifying
  Party

  	
   

  	
  11.05

  
	
  Information
  Systems Contracts

  	
   

  	
  3.14(g)

  
	
  Interim
  Financial Statement

  	
   

  	
  3.06(a)

  
	
  Inventory

  	
   

  	
  2.08(a)

  
	
  Irish
  Benefit Plan

  	
   

  	
  3.17(g)

  
	
  ITAR

  	
   

  	
  3.03

  
	
  Lower
  Working Capital Limit

  	
   

  	
  2.08(c)(i)

  
	
  Low
  Value

  	
   

  	
  2.08(b)(i)

  
	
  Material
  Contracts

  	
   

  	
  3.08(a)

  
	
  Material
  Customers

  	
   

  	
  3.21(a)

  
	
  Material
  Suppliers

  	
   

  	
  3.21(b)

  
	
  M/A-COM
  Mark

  	
   

  	
  7.05(a)

  
	
  NFA
  Letter

  	
   

  	
  11.08

  
	
  NISPOM

  	
   

  	
  3.03

  
	
  Non-assignable
  Assets

  	
   

  	
  2.05

  
	
  Noncompetition
  Period

  	
   

  	
  5.04(a)

  
	
  Operating
  Subsidiaries

  	
   

  	
  11.09

  
	
  Other
  Business Employee

  	
   

  	
  9.04

  
	
  Other
  Consent Costs

  	
   

  	
  2.05

  
	
  Owned
  Real Property

  	
   

  	
  2.01(b)

  
	
  Parent
  Guarantees

  	
   

  	
  3.22

  
	
  Parent
  LofCs

  	
   

  	
  3.22

  
	
  Purchased
  Assets

  	
   

  	
  2.01

  
	
  Purchase
  Price

  	
   

  	
  2.06(a)

  
	
  Quebec
  Business Employee

  	
   

  	
  9.02

  
	
  Real
  Property Leases

  	
   

  	
  2.01(a)

  
	
  Re-Opener

  	
   

  	
  11.08

  
	
  Registered
  Intellectual Property

  	
   

  	
  3.14(a)

  
	
  Related
  Obligation or Contract

  	
   

  	
  6.05(a)

  
	
  Restricted
  Business

  	
   

  	
  5.04(a)

  
	
  Sale
  Transaction

  	
   

  	
  5.02(a)

  



 


16

















 


	
  Term

  	
   

  	
  Section

  
	
  Seller

  	
   

  	
  Preamble

  
	
  Seller
  CFC Taxes

  	
   

  	
  8.14(a)

  
	
  Seller
  Covenant Not To Sue

  	
   

  	
  7.05

  
	
  Seller
  Surety Bonds

  	
   

  	
  3.22

  
	
  Seller’s
  Refunds

  	
   

  	
  8.07(a)

  
	
  Seller’s
  Taxes

  	
   

  	
  8.01

  
	
  Selling
  Entities

  	
   

  	
  3.01

  
	
  Specified
  Policy

  	
   

  	
  5.06

  
	
  Subsidiary
  Shareholders Agreement

  	
   

  	
  3.04

  
	
  Tax
  Indemnified Party

  	
   

  	
  8.06(d)

  
	
  Tax
  Indemnifying Party

  	
   

  	
  8.06(d)

  
	
  Tax
  Claim

  	
   

  	
  8.06(d)

  
	
  Tax
  Notice

  	
   

  	
  8.06(d)

  
	
  Taxing
  Authority Notice

  	
   

  	
  8.06(d)

  
	
  Tax
  Objection Notice

  	
   

  	
  8.06(e)

  
	
  Third
  Party Claim

  	
   

  	
  11.05(b)

  
	
  Transferred
  Canadian Employee

  	
   

  	
  9.02

  
	
  Transferred
  Employee

  	
   

  	
  9.07

  
	
  Transferred
  Intellectual Property

  	
   

  	
  2.01(j)

  
	
  Transferred
  Other Employee

  	
   

  	
  9.04

  
	
  Transferred
  Patents

  	
   

  	
  2.01(j)

  
	
  Transfer
  Tax Returns

  	
   

  	
  8.04(c)

  
	
  Transferred
  U.S. Employees

  	
   

  	
  9.01(a)

  
	
  Tyco
  Electronics Cafeteria Plan

  	
   

  	
  9.01(g)

  
	
  Tyco
  Electronics Savings Plan

  	
   

  	
  9.01(e)

  
	
  Upper
  Working Capital Limit

  	
   

  	
  2.08(c)(i)

  
	
  Warranty
  Breach

  	
   

  	
  11.02(a)(i)

  



 


Section 1.02.  Other
Definitional and Interpretative Provisions. 
The words “hereof”, “herein” and “hereunder” and words of
like import used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement.  The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.  References to
Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits
and Schedules of this Agreement unless otherwise specified.  All Exhibits and Schedules annexed hereto or
referred to herein are hereby incorporated in and made a part of this Agreement
as if set forth in full herein.  Any
capitalized terms used in any Exhibit or Schedule but not otherwise
defined therein shall have the meaning as defined in this Agreement.  Any singular term in this Agreement shall be
deemed to include the plural, and any plural term the singular.  Whenever the words “include”, “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by
the words “without limitation”, whether or not they are in fact followed by
those words or words of


 


17

















 


like
import.  The word “extent” in the phrase
“to the extent” shall mean the degree to which a subject or other thing
extends, and such phrase shall not mean simply “if”.  “Writing”, “written” and comparable terms
refer to printing, typing and other means of reproducing words (including
electronic media) in a visible form.  References
to any Contract are to that Contract as amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof; provided that with respect to any Contract
listed on any schedules hereto, all such amendments, modifications or
supplements must also be listed in the appropriate schedule.  References to any Person include the
successors and permitted assigns of that Person.  References from or through any date mean,
unless otherwise specified, from and including or through and including,
respectively.  References to “law”,
“laws” or to a particular statute or law shall be deemed also to include any
and all Applicable Laws.  Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.  Any reference
to a statute refers to the statute, any amendments or successor legislation,
and all regulations promulgated under or implementing the statute, as in effect
at the relevant time.


 


ARTICLE 2

PURCHASE AND SALE


 


Section 2.01.  Purchase and
Sale.  Upon the terms and
subject to the conditions of this Agreement, Buyer agrees to purchase (or,
subject to Section 13.05, cause Buyer’s designated Affiliate(s) to
purchase) from Seller and its Affiliates and Seller agrees to sell, convey,
transfer, assign and deliver, or cause to be sold, conveyed, transferred,
assigned and delivered, to Buyer (or, subject to Section 13.05, Buyer’s
designated Affiliate(s)) at the Closing, free and clear of all Liens, other
than Permitted Liens, all of Seller’s and its Affiliates’ right, title and
interest in, to and under the following assets, properties and rights of Seller
and its Affiliates (the “Purchased Assets”):


 


(a)           all rights under the leases of real
property listed on Schedule 2.01(a) (each a “Real Property Lease”, collectively, the “Real Property Leases”);


 


(b)           the real property, including those
tower sites where Seller or any of its Affiliates own the real property on
which the tower stands, together with all buildings, fixtures and improvements
erected thereon, listed on Schedule 2.01(b) (collectively, the “Owned Real Property”);


 


(c)           all Closing Cash, if any, to the
extent it is held in bank accounts dedicated to the Business;


 


(d)           all personal property and interests
therein, including all machinery and equipment, tools, Information Systems,
spare parts, furniture, office furnishings, vehicles, test equipment and other
tangible personal property owned and used, held for use or intended to be used
primarily in the Business, wherever


 


18

















 


located
(including on or in transit to or from the Business properties), including
those items of tangible personal property set forth on Schedule 2.01(d);


 


(e)           all raw materials, work in process,
finished goods, supplies, molds, parts, spare parts, replacement and component
parts, labels, packaging, demonstrating inventory and other inventories,
wherever located (including on or in transit to or from the Business
properties), owned and used, held for use or intended to be used primarily in
the Business;


 


(f)            all rights (including any rights or
claims for non-performance or breach) under all Contracts (other than the Real
Property Leases) relating primarily to the Business other than the Excluded
Contracts;


 


(g)           all accounts, notes, miscellaneous
and other receivables, including unbilled receivables, unbilled revenues
(including amounts due under customer holdback or retention arrangements) and
reimbursable costs and expenses, of the Business, including the Assumed
Intercompany Receivables;


 


(h)           all deposits, prepaid expenses and
refunds of the Business (other than any Tax refunds to which Seller or its
Affiliates are entitled under Article 8), including ad valorem Taxes,
leases, rentals, advance payments, deferred charges and credits and any of
Seller or its Affiliates’ rights in amounts held in trust in connection with
the Service and Access Agreement (or related or subsequent Contract) with the
State of Florida;


 


(i)            all rights, claims, credits,
demands, causes of action or rights of set-off against third parties relating
to or arising from the Purchased Assets or the Assumed Liabilities, including
unliquidated rights under manufacturers’, suppliers’, licensors’,
contractors’  and vendors’ warranties,
guaranties, indemnities and similar rights relating primarily to the Business;


 


(j)            the Patents set forth on Schedule
2.01(j) (the “Transferred Patents”),
the DTX Patents and DTX Trademarks and all Owned Intellectual Property Rights
and Licensed Intellectual Property Rights, together with all income, royalties,
damages and payments due or payable to Seller and/or its Affiliates as of the
Closing or thereafter (including damages and payments for past, present or
future infringements, misappropriations or other violations thereof) and the
rights to sue and collect damages for past, present or future infringements,
misappropriations or other violations thereof, and any corresponding,
equivalent or counterpart rights, title or interest that now exist or may be
secured hereafter anywhere in the world (collectively, the “Transferred Intellectual Property”);


 


(k)           all transferable Permits (or
applications for Permits) primarily related to the Business;


 


(l)            all present and former customer,
vendor, supplier, contractor, and service-provider lists and books, records,
files, documents, lists, drawings, creative materials, studies, catalogues,
product operation sheets, mailing lists,


 


19

















 


quality
control records, certifications, procedures, reports, and papers, whether in
hard copy or computer format, relating primarily to customers, vendors,
suppliers, contractors or service providers of the Business and/or used in the
Business, including billing, payment, dispute and credit information and
similar data, engineering information, sales and promotional literature and
records, manuals and data, sales and purchase correspondence, lists of present
and former suppliers, lists of present and former customers and tangible
embodiments of the Transferred Intellectual Property (or copies thereof) to the
extent such embodiments are held for use or used in connection with the
Business;


 


(m)          to the extent permitted by Applicable
Law, copies of the personnel and employment records relating to Transferred
Employees; provided that if
Applicable Law requires that Buyer receive original personnel and employment
records relating to any Transferred Employees, Buyer shall receive such records
pursuant to this Section 2.01(m);


 


(n)           all goodwill and other intangible
assets associated with the Business and the Purchased Assets (including the
goodwill associated with the Transferred Intellectual Property), together with
the right to represent to third parties that Buyer is the successor to the
Business;


 


(o)           the assets of the Benefit Plans set
forth on Schedule 2.01(o) (collectively, the “Assumed Plans”);


 


(p)           the Tax records of the Subsidiary;


 


(q)           any ownership interests in the
Subsidiary; provided that
notwithstanding the transactions contemplated hereby or any provision of this
Agreement, all assets and liabilities of the Subsidiary shall remain the assets
and liabilities of the Subsidiary;


 


(r)            all other types or categories of
assets, rights and properties owned and used, held for use or intended to be
used primarily in the conduct of the Business (other than the Excluded Assets);
and


 


(s)           all other assets set forth on
Schedule 2.01(s).


 


Section 2.02.  Excluded
Assets.  Notwithstanding any
provision in this Agreement or any other writing to the contrary, Seller and
its Affiliates will retain and will not transfer or assign, and Buyer will not
purchase, acquire or assume from Seller or any of its Affiliates, any of the
following assets, properties or rights (collectively, the “Excluded Assets”), and Buyer shall acquire
no right, title or interest in any Excluded Assets under this Agreement or as a
result of the transactions contemplated hereby; provided that notwithstanding the transactions contemplated
hereby or any provision of this Agreement, all assets and liabilities of the
Subsidiary shall remain the assets and liabilities of the Subsidiary:


 


20

















 


(a)        Closing
Cash to the extent that it is not held in bank accounts dedicated to the
Business and not included in the Closing Cash Amount;


 


(b)           all intercompany receivables of the
Business payable by Seller or an Affiliate of Seller, other than Assumed
Intercompany Receivables;


 


(c)           any corporate books and records of
Seller and its Affiliates (other than the Subsidiary);


 


(d)           the Contracts set forth on Schedule
2.02(d) (the “Excluded Contracts”);


 


(e)           any current and prior insurance
policies of Seller and its Affiliates and any rights of any nature with respect
thereto;


 


(f)            the assets of any Benefit Plan other
than the Assumed Plans (such Benefit Plans are collectively, the “Excluded Plans”);


 


(g)           (i) the “Tyco”, “Tyco
Electronics” and “M/A-COM” names, marks and logos, and any other item set forth
on Schedule 2.02(g) (including all goodwill associated therewith) and (ii) except
for the Transferred Intellectual Property, any Intellectual Property Rights of
Seller or any of its Affiliates;


 


(h)           all loans and other advances owing to
Seller or any of its Affiliates by each Business Employee who does not become a
Transferred Employee;


 


(i)            the Tax records of Seller and any of
its Affiliates (other than the Subsidiary);


 


(j)            the original personnel and
employment records relating to Transferred Employees to the extent Applicable
Law does not require that Buyer receive such original records;


 


(k)           any rights, claims, causes of action
or rights of set off arising out of the Excluded Liabilities;


 


(l)            any refunds or credits of Taxes due
to Seller or its Affiliates pursuant to Section 8.07;


 


(m)          any Purchased Assets sold or otherwise
disposed of in the ordinary course of business and not in violation of any
provisions of this Agreement during the period from the date hereof until the
Closing Date;


 


(n)           all rights of Seller or any of its
Affiliates owed by Cobham Defense Electronic Systems Corporation and Cobham plc
pursuant to the Stock and Asset Purchase Agreement by and among Seller, Cobham
Defense Electronic Systems Corporation and Cobham plc dated as of May 12,
2008, as amended (the “Cobham Agreement”);


 


21

















 


(o)           subject to Section 11.07, all
rights of Seller or its Affiliates owed by Com-Net Critical Communications, Inc.
and the former shareholders of Com-Net Critical Communications, Inc.
pursuant to the Stock Purchase Agreement by and among Tyco Acquisition Corp.
XVIII (now known as M/A-COM Tech. Holdings, Inc.), Com-Net Critical
Communications, Inc. and the shareholders of Com-Net Critical
Communications, Inc. dated as of March 30, 2001, as amended (the “Com-Net Agreement”); provided that the properties and assets
transferred, directly or indirectly, to Seller or its Affiliates under such
agreement will not be Excluded Assets; and


 


(p)           any other assets set forth on
Schedule 2.02(p).


 


Section 2.03.  Assumed
Liabilities.  Upon the terms
and subject to the conditions of this Agreement, Buyer agrees, effective at the
time of the Closing, to assume (or to cause to be assumed) all Liabilities to
the extent relating primarily to the ownership, use or operation of the
Purchased Assets or the Business, whether arising prior to, at or after the
Closing, other than the Excluded Liabilities (all of the foregoing Liabilities
to be so assumed being herein collectively called the “Assumed Liabilities”); provided that notwithstanding the
transactions contemplated hereby or any provision of this Agreement, all assets
and liabilities of the Subsidiary shall remain the assets and liabilities of
the Subsidiary.  Without limitation of
the foregoing, Assumed Liabilities shall include the following:


 


(a)           all accounts payable and other
accrued expenses of the Business, including, without duplication, Assumed
Intercompany Payables, but excluding Taxes (which, for the avoidance of doubt,
shall be governed exclusively by Section 2.03(i) and Article 8);


 


(b)           subject to Sections 2.04(t) and
2.04(u), all Liabilities arising from the design, construction, testing,
marketing, service, operation or sale of products and services of the Business
prior to, at or after the Closing, including warranty obligations;


 


(c)           all Liabilities of Seller and its
Affiliates arising prior to, at or after the Closing under the Contracts
relating primarily to the Business (other than the Excluded Contracts);


 


(d)           all Liabilities of Seller and its
Affiliates arising prior to, at or after the Closing under the Real Property
Leases;


 


(e)           all Liabilities with respect to
Business Employees (including (i) all Liabilities for any claim by a
Business Employee under any self-insured health plan of Seller or an Affiliate
of Seller incurred prior to the Closing, regardless of when such claim is
reported by such Business Employee (but no other Liabilities with respect to a
self-insured health plan or any Liability with respect to an insured health
plan), (ii) any severance, termination pay, notice period and similar


 


22

















 


Liabilities
arising from the termination of employment of any Business Employees who do not
become Transferred Employees and (iii) any Liabilities with respect to any
Business Employee who is on short-term disability, pregnancy or parental leave
or any other authorized leave of absence immediately prior to the Closing Date
and who returns to active employment with Buyer or an Affiliate of Buyer within
six months following the Closing Date), excluding any Liabilities expressly set
forth as Excluded Liabilities in Section 2.04 (such non-excluded
compensation and benefits, “Assumed
Compensation and Benefits”);


 


(f)            all Liabilities arising under any
action, suit, investigation or proceeding by or on behalf of or with respect to
any Business Employee;


 


(g)           all Liabilities arising under the Assumed
Plans;


 


(h)           subject to Section 11.07, all
Liabilities arising out of or relating to any Environmental Condition in
connection with or relating to the Purchased Assets or the Real Property (other
than any Excluded Environmental Liabilities);


 


(i)            all Liabilities for or with respect
to Taxes for which Buyer bears responsibility pursuant to Article 8;


 


(j)            all Liabilities under any lease
required to be classified as a capitalized lease obligation in accordance with
GAAP; and


 


(k)           all other Liabilities set forth on
Schedule 2.03(k).


 


Section 2.04.  Excluded
Liabilities.  Notwithstanding
any provision in this Agreement or any other writing to the contrary, Seller
and its Affiliates shall retain and be responsible for the following
Liabilities relating to the Business (collectively, the “Excluded Liabilities”); provided that notwithstanding transactions
contemplated hereby or any provision of this Agreement all assets and
liabilities of Subsidiary shall remain assets and liabilities of the
Subsidiary:


 


(a)           all Liabilities for or with respect
to Taxes for which Seller or its Affiliates bear responsibility pursuant to Article 8;


 


(b)           all Liabilities of Seller and its
Affiliates to pay any Indebtedness incurred on or prior to the Closing Date;


 


(c)           all accounts payable and accrued
expenses of Seller and its Affiliates not related to the conduct of the
Business;


 


(d)           (i) intercompany payables of the
Business owed to Seller or any Affiliate of Seller other than Assumed
Intercompany Payables and (ii) all liabilities arising under Contracts of
the Business that are solely between Seller and its Affiliates (including
Contracts between two Affiliates of Seller), other than, in the case of clauses
(i) and (ii), ordinary course arm’s length purchase orders for goods or
services and Contracts regarding employment or employment benefits;


 


23

















 


(e)           all Liabilities for any Selling
Expenses;


 


(f)            all retention, change in control,
bonus or similar awards payable to employees, agents and consultants of Seller
or any of its Affiliates as a result of, in connection with or with respect to
the transactions contemplated by this Agreement and unpaid as of the Closing
Date, including any amounts payable under the retention and sale bonus agreements
set forth on Schedule 2.04(f) (including the employer portion of any
payroll, social security, unemployment or similar Taxes);


 


(g)           all Liabilities arising under the
Excluded Plans, including any defined benefit or defined contribution pension
obligation (regardless of whether such obligation is contained in an employment
agreement, collective bargaining agreement, national, industry or company
agreement, works council agreement or otherwise), other than any such pension
obligation that is solely governmental and, as an initial matter, was not
voluntary in nature and other than the Canadian Registered Retirement Savings
Plans and the Irish Benefit Plan; any non-qualified deferred compensation
arrangement; and any post-retirement health and post-retirement life insurance
plans (other than the Com-Net Retirement Medical Plan);


 


(h)           all Liabilities arising under the
Tyco International (US) Inc. Retirement Savings and Investment Plan I, as
amended and restated as of August 3, 2002, including those relating to the
special pension supplement credited as a transitional benefit on behalf of
eligible Business Employees who were participants in the AMP Incorporated
Pension Plan;


 


(i)            all Liabilities arising under any
stock option and other equity-based compensation plans of Seller or its
Affiliates;


 


(j)            all Liabilities with respect to
Former Employees;


 


(k)           all Liabilities with respect to
Business Employees (i) whose employment transfers to Buyer or an Affiliate
of Buyer or to whom an offer of employment is required to be made, in each case
in accordance with Applicable Law (including the Transfer Regulations) if such
Business Employee was, immediately prior to the Closing Date, on long-term
disability, unauthorized leave of absence or lay-off with or without recall
rights or (ii) who are on short-term disability, pregnancy or parental
leave or any other authorized leave of absence immediately prior to the Closing
Date and do not return to active employment with Buyer or an Affiliate of Buyer
within six months following the Closing Date;


 


(l)            all liabilities for or with respect
to employee benefits for which Seller or its Affiliates bear responsibility as
specifically contemplated under Article 9;


 


(m)          all Excluded Environmental
Liabilities;


 


24

















 


(n)           all Liabilities arising under,
related to or in respect of the Cobham Agreement and the transactions
contemplated thereby or undertaken in connection therewith, including all
Liabilities arising under, related to or in respect of the business, properties
and assets transferred under such agreement;


 


(o)           subject to Section 2.03(h), all
Liabilities arising under, related to or in respect of the Com-Net Agreement
and the transactions contemplated thereby or undertaken in connection
therewith;


 


(p)           all Liabilities arising under,
related to or in respect of the Autoliv Agreement and the transactions
contemplated thereby or undertaken in connection therewith, including all
Liabilities arising under, related to or in respect of the business, properties
and assets transferred under such agreement;


 


(q)           any Liability primarily relating to
or arising out of an Excluded Asset; provided
that any Liability under Item 8 on Schedule 2.02(d) to the extent it
relates to the personal property primarily used in the Business shall not be an
Excluded Liability;


 


(r)            all Liabilities arising under,
related to or in respect of any non-compliance (or alleged non-compliance) with
any Applicable Laws prior to the Closing Date, but only to the extent arising
out of any criminal Legal Proceeding;


 


(s)           all Liabilities arising out of or
with respect to the Retained Business or any Seller Product (other than Seller
Products sold to the Business) whether arising prior to, on or after the
Closing Date;


 


(t)            all Liabilities arising out of or
relating to any business (as opposed to a product line) formerly owned or
operated by the Business or any predecessor thereof, but not so owned or
operated as of the Closing Date;


 


(u)           all Liabilities related to, arising
out of or with respect to the SONY Dispute, the SONY Contract or, to the extent
related to the SONY Dispute or the SONY Contract, any agreement related thereto
(including the breach of, performance or non-performance of, noncompliance
with, or default under any provisions of the SONY Contract or, to the extent
related thereto, any agreement related thereto by Seller or any of its
Affiliates), or the design, construction, delivery, distribution, supply,
operation, or maintenance of the land mobile radio system and network under the
SONY Contract, including (i) all Liabilities arising from, related to or
with respect to any letters of credit issued in connection with the SONY
Contract or, to the extent related thereto, agreements related thereto, (ii) all
Liabilities to third Persons, including vendors, subcontractors and employees,
including General Dynamics and Alcatel, (iii) all Liabilities under
Contracts (including vendor and subcontract Contracts) entered into primarily
in connection with the SONY Contract, and (iv) any Legal Proceedings of
any kind  and whether or not
currently threatened or pending that arise out of or are related to any of the
foregoing; and


 


25














 


(v)           all other Liabilities set forth on
Schedule 2.04(v).


 


Section 2.05.  Assignment of
Contracts and Rights.  (a) 
Notwithstanding anything in this Agreement to the contrary, this Agreement
shall not constitute an agreement to assign any Purchased Asset or any claim or
right or any benefit arising thereunder or resulting therefrom if such
assignment, with or without the consent, approval or waiver of, or notice to, a
third party thereto, would constitute a breach or other contravention of such
Purchased Asset or violation of any Applicable Law or in any way adversely
affect the rights of Buyer (or its designated Affiliate(s)) or Seller (or an
Affiliate of Seller) thereunder unless and until any required consent, approval
or waiver is obtained.  Seller and Buyer
shall use their reasonable best efforts (including the dedication of resources
thereto, but without any obligation to expend money, commence litigation or
offer or grant any financial or other accommodation to any third party) to
obtain the consent, approval or waiver of, or provide the required notice to,
such third parties to or of the assignment to Buyer (or, subject to Section 13.05,
its designated Affiliate(s)) of any Purchased Asset or any claim or right or
any benefit arising thereunder or otherwise transfer the rights and benefits of
any Non-assignable Asset (as defined below) to Buyer or, subject to Section 13.05,
its designated Affiliate, including, in the case of any non-transferable
Permits, to cause the applicable Governmental Authority to issue a new Permit
to Buyer or its Affiliate in place of such non-transferable Permit and with
respect to prime Government Contracts, to obtain all necessary approval and
consent of the applicable U.S. federal Governmental Authority to novate such
prime Government Contracts in accordance with FAR Subpart 42.12.  If such consent, approval or waiver is not
obtained, or such notice is not made, or if an attempted assignment thereof
would be ineffective or would adversely affect the rights of Seller or any of its
Affiliates thereunder so that Buyer (or, subject to Section 13.05, its
designated Affiliate(s)) would not in fact receive all such rights, or if such
asset is not transferable under Applicable Law with or without such consent,
approval, waiver or notice (any assets so described, the “Non-assignable Assets”), Seller and Buyer
will use their commercially reasonable efforts (but without any obligation to
expend money, commence litigation or offer or grant any financial or other
accommodation to any third party) to enter into a mutually agreeable
arrangement under which Buyer would assume the obligations and Seller would
provide to Buyer (or, subject to Section 13.05, its designated
Affiliate(s)) the benefits of any Non-assignable Asset, including sub-contracting,
sub-licensing, or sub-leasing to Buyer (or, subject to Section 13.05, its
designated Affiliate(s)), and with respect to the prime Government Contracts,
entering into and taking commercially reasonable efforts to obtain any required
approvals or consents of any U.S. federal Governmental Authority to the
Subcontract prior to the Closing Date), or under which Seller would enforce for
the benefit of Buyer (or, subject to Section 13.05, its designated
Affiliate(s)), with Buyer (or, subject to Section 13.05, its designated
Affiliate(s)) assuming Seller’s (or such Affiliate’s) obligations under such
Non-assignable Asset, any and all rights of Seller or such Affiliate against a
third party thereto.  In connection with
any such arrangement, Buyer shall reimburse Seller and its Affiliates for any
reasonable and documented out-of-pocket costs and expenses actually incurred by


 


26

















 


Seller
or its Affiliates in connection with the performance of any mutually agreeable
arrangement or that otherwise would have been incurred by Buyer or its
Affiliates had such Non-assignable Asset been assigned, transferred or conveyed
as contemplated by this Agreement, including any Liability arising out of
Buyer’s failure to perform thereunder (such costs and expenses, the “Alternative Arrangement Costs”).  Prior to the amount of the deductible
described in clause (B) of Section 11.02(a) being exceeded
(whether pursuant to reimbursement under this sentence or pursuant to any other
provision of this Agreement or a combination of the foregoing), Buyer will
promptly reimburse Seller for all out-of pocket costs and expenses actually
incurred by Seller or its Affiliates (other than Alternative Arrangement Costs)
relating to or arising from the failure to obtain a consent, approval or waiver
for any Non-assignable Assets (such costs and expenses, the “Other Consent Costs”) and any such
reimbursement shall be applied toward such deductible.  After the amount of such deductible has been
exceeded, Buyer will promptly reimburse Seller for 50% of Other Consent
Costs.  Seller will promptly pay to Buyer
(or, subject to Section 13.05, its designated Affiliate(s)) when received
all monies received by Seller or an Affiliate of Seller under any Purchased Asset
or any claim or right or any benefit arising thereunder, except to the extent
the same represents an Excluded Asset.


 


(b)           Notwithstanding anything to the
contrary in this Agreement (including anything in the foregoing Section 2.05(a)),
with respect to the Transferred Software set forth on Schedule 1.01(a)(v), (i) if
requested by Buyer in writing, Seller shall use its commercially reasonable
efforts to seek the Consent of any third party required to transfer such
Transferred Software to Buyer; provided that
in no event shall Seller be required to (w) expend money, (x) commence
any litigation, (y) offer or grant any accommodation (financial or
otherwise) to any third party in order to obtain such Consent or (z) diminish
any rights of the Seller or its Affiliates in the Transferred Software (other
than a reduction in the number of seat or user licenses); and (ii) if
Seller is unable to obtain any Consent in accordance with clause (i) required
to transfer any Transferred Software, Seller shall have no further obligation
to Buyer under the Agreement or otherwise with respect to the transfer of such
Transferred Software, except as contemplated by the Transition Services
Agreement.  In the event the Transferred
Software is transferred to Buyer, Buyer shall be responsible for any
obligations with respect to such Transferred Software after the date of such
transfer.


 


Section 2.06.  Purchase
Price; Allocation of Purchase Price.  (a) 
The purchase price for the Purchased Assets (the “Purchase Price”) is equal to $675,000,000  in cash. 
The Purchase Price shall be paid as provided in Section 2.07 and
shall be subject to adjustment as provided in Section 2.08.  Seller shall be treated as receiving a
portion of the Purchase Price as agent for any of its Affiliates actually
selling, transferring or conveying the Purchased Assets, consistent with the
allocation of the Purchase Price pursuant to the Allocation Statement, and
Buyer’s payment of the Purchase Price to Seller shall constitute payment by
Buyer to any of Seller’s Affiliates actually selling, transferring or conveying
the Purchased Assets hereunder.


 


27

















 


(b)           Within 60  days after the Closing, Buyer shall deliver to Seller a
statement (the “Allocation Statement”)
allocating the Purchase Price (plus Assumed Liabilities and transaction costs,
to the extent properly taken into account under Section 1060 of the Code)
among the Purchased Assets in accordance with Section 1060 of the
Code.  If, within five Business Days
after delivery of the Allocation Statement, Seller notifies Buyer in writing
that Seller objects to the allocation set forth in the Allocation Statement,
Buyer and Seller shall use commercially reasonable efforts to resolve such
dispute within 20 days.  In the event
that Buyer and Seller are unable to resolve such dispute within 20 days, Buyer
and Seller shall jointly retain KPMG LLP (the “Accounting Referee”) to resolve the disputed items in the
manner described in Section 8.10.


 


(c)           Each of Buyer and Seller shall (i) be
bound by the Allocation Statement, as may be adjusted in accordance with Section 2.06(e),
(ii) act in accordance with, and cause its Affiliates to act in accordance
with, the Allocation Statement in the preparation, filing and audit of any Tax
Return (including filing IRS Form 8594 with its federal Income Tax Return
for the taxable year that includes the Closing) and (iii) take no
position, and cause its Affiliates to take no position, inconsistent with the
allocation reflected on the Allocation Statement on any Tax Return, in any
Contest or otherwise, unless required by a Final Determination.


 


(d)           In the event that the allocation
reflected on the Allocation Statement is disputed by any Taxing Authority, the
party receiving notice of the dispute shall promptly notify the other party
hereto, and Buyer and Seller shall use their commercially reasonable efforts to
defend such allocation in any Tax audit or similar proceeding.


 


(e)           If an adjustment is made with respect
to the Purchase Price pursuant to Section 2.08, the Allocation Statement
shall be adjusted in accordance with Section 1060 of the Code and as
mutually agreed by Buyer and Seller.  In
the event that an agreement is not reached within 20 days after the
determination of the Final Closing Working Capital, any disputed items shall be
resolved in the manner described in Section 8.10.  Buyer and Seller shall file any additional
information return required to be filed pursuant to Section 1060 of the
Code and to treat the Allocation Statement as adjusted in the manner described
in Section 2.06(c).


 


(f)            Not later than 30 days prior to the
filing of their respective Forms 8594 relating to this transaction, each party
shall deliver to the other party a copy of its Form 8594.


 


Section 2.07.  Closing.  The closing (the “Closing”) of the purchase and sale of the
Purchased Assets and the assumption of the Assumed Liabilities hereunder shall
take place at the offices of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York, as soon as possible, but in no event later than
three Business Days, after satisfaction (or to the extent permitted, the


 


28

















 


waiver)
of the conditions set forth in Article 10 (other than those conditions
that by their nature may only be satisfied at the Closing and will in fact be
satisfied at the Closing), or at such other time or place as Buyer and Seller
may agree; provided, however,
that the Closing may be delayed by Seller (x) for up to one
month if the Tax Opinion has not been finalized by such date, to permit the Tax
Opinion to be finalized or (y) the end of Seller’s applicable fiscal
month.  Notwithstanding the foregoing,
Seller shall not be entitled to exercise its right to delay the Closing under
either (x) or (y) of the immediately preceding sentence if Seller
would otherwise be obligated to complete the Closing between June 26, 2009
and July 3, 2009 (inclusive).  If
Seller exercises its right to delay the Closing as set forth in the second
immediately preceding sentence, Seller shall deliver 5 Business Days’ notice to
Buyer of Seller’s intent to close.  The
Closing shall be deemed to be effective for accounting and other computational
purposes, and the parties will treat the Closing as if it had occurred, at
11:59 p.m. Eastern Time on the Closing Date.  All proceedings to be taken, and all
documents to be executed and delivered by all parties at the Closing, shall be
deemed to have been taken and executed simultaneously, and no proceedings shall
be deemed to have been taken and no documents shall be deemed to have been
executed or delivered until all have been taken, executed and delivered.  At the Closing:


 


(a)           Buyer shall deliver (or, subject to Section 13.05,
cause one or more of its designated Affiliates to deliver) to Seller the
Purchase Price in immediately available funds by wire transfer to an account of
Seller with a bank in New York City designated by Seller, by notice to Buyer,
which notice shall be delivered not later than two Business Days prior to the
Closing Date.


 


(b)           Seller shall deliver or cause its
Affiliates to deliver, as applicable, to Buyer such deeds, bills of sale,
endorsements, assignments, duly endorsed certificates, stock powers and other
good and sufficient instruments of conveyance and assignment as reasonably
necessary or appropriate to vest in Buyer (or, subject to Section 13.05,
its designated Affiliate) all right, title and interest in, to and under the
Purchased Assets other than the Irish Purchased Assets.


 


(c)           Seller shall deliver or cause its Affiliates
to deliver, as applicable, to Buyer such deeds, bills of sale, endorsements,
assignments, duly endorsed certificates, stock powers and other good and
sufficient instruments of conveyance and assignment as reasonably necessary or
appropriate to vest in Buyer (or, subject to Section 13.05, its designated
Affiliate) all right, title and interest in, to and under the Irish Purchased
Assets in accordance with Section 2.10.


 


(d)           Seller and Buyer shall enter into or
cause their respective Affiliates, as applicable, to enter into the Transaction
Documents (other than this Agreement), and Seller and Buyer shall deliver (or
cause to be delivered) to each other their respective duly executed
counterparts of each of the Transaction


 


29

















 


Documents
(other than this Agreement) to which it (or any of its Affiliates) is a party.


 


(e)           Seller shall cause each Selling
Entity that is selling any Owned Real Property or assigning a Real Property
Lease that is located, or with respect to property located, in the United
States to deliver to Buyer a non-foreign person affidavit that satisfies the
requirements of Section 1445 of the Code.


 


(f)            Buyer and Seller shall each deliver
to the other such other documents and instruments as the other may reasonably
request to consummate the transactions contemplated by this Agreement or as
evidence that the conditions set forth in Article 10 have been satisfied.


 


Section 2.08.  Closing
Balance Sheet; Purchase Price Adjustment. 
(a)  Promptly after the Closing Date, and in any event
not later than thirty (30) days following the Closing Date, Seller shall
prepare and deliver to Buyer for its review a statement (the “Closing Statement”) of the Closing Working
Capital and the Closing Cash as of the close of business on the Closing
Date.  “Closing
Working Capital” means, as of the Closing, the current assets of the
Business (excluding Closing Cash, State of Florida deferred costs phases 3,4,5
(recorded in SAP account number 1308015) and deferred Income Tax assets but
including the long-term portion of any unbilled revenues or unbilled
receivables) less the current liabilities of the Business (excluding all State
of Florida deferred revenue liabilities (including SAP account numbers 2308010,
2308015 and 2308025), P7200 rework and related liabilities, deferred Income Tax
liabilities and, for the avoidance of doubt, accrued Income Tax liabilities),
in each case included in the Purchased Assets and Assumed Liabilities or owned
or owing by the Subsidiary, taken as a whole. 
Closing Working Capital and Closing Cash will be determined in a manner
consistent with the policies, principles, practices and methodologies set forth
on Exhibit D (the “Agreed
Principles”).  The calculation
of the target closing working capital is set forth in Exhibit E.  Buyer
shall give Seller and its Representatives reasonable access to the premises,
books and records, and appropriate personnel of the Business as necessary for
purposes of the preparation of the Closing Statement in accordance with this Section 2.08(a) (and
during the periods contemplated by Section 2.08(b)).  Buyer shall instruct its employees (including
the Transferred Employees) and Representatives to cooperate with, and promptly
and completely respond to all reasonable requests and inquiries of, Seller and
its Representatives, and, upon execution of a customary access letter if
required by Buyer’s outside accountants, Seller and its Representatives shall
have reasonable access, upon reasonable notice, to all relevant work papers,
schedules, memoranda and other documents prepared by Buyer or its
Representatives (including its outside accountants) to the extent such
materials have been prepared by Buyer and its Representatives and relate to the
calculation of Closing Working Capital and/or the Closing Cash and are
reasonably required by Seller or its Representatives in the calculation of
Closing Working Capital and/or Closing Cash. 
At the Business’s facilities in Lynchburg, Virginia, Cork, Ireland, and
additional locations which would reasonably be deemed necessary to achieve at


 


30

















 


least
75% coverage of total inventory of the Business, whether raw materials,
work-in-process or finished product (the “Inventory”),
Seller will determine the quantities of Inventory located at such facilities as
of the Closing Date for purposes of the Closing Working Capital calculation by
taking a physical count or measurement of the Inventory located at such
facilities commencing as soon as reasonably practicable after the Closing
Date.  During such physical count or
measurement, Seller will use commercially reasonable efforts to ensure that
incoming shipments of materials from suppliers and shipments to customers do
not affect such physical counts or measurements.  Seller will conduct such physical counts or
measurements of the Inventory using Business Employees and/or contractors.  For finished product Inventory in transit to
customers on the Closing Date, the physical count or measurement will exclude
the invoiced quantities in transit to customers as supported by shipping
records.  Buyer will have the right to
have its Representatives observe and check such physical inventory count or
measurement.


 


(b)           Buyer and its Representatives may make
reasonable inquiries of Seller and/or its Representatives regarding questions
concerning or disagreements with the Closing Statement arising in the course of
Buyer’s review.  Seller shall give Buyer
reasonable access to the premises, books and records, and its Representatives
for purposes of reviewing the Closing Statement in accordance with this Section 2.08(b).  Seller shall instruct its employees and
Representatives and cause its Affiliates to instruct their respective employees
and Representatives to cooperate with, and promptly and completely respond to
all reasonable requests and inquiries of, Buyer and its Representatives, and,
upon execution of a customary access letter if required by Seller’s outside
accountants, Buyer and its Representatives shall have reasonable access, upon
reasonable notice, to all relevant work papers, schedules, memoranda and other
documents prepared by Seller or its Representatives (including its outside
accountants) to the extent such materials relate to the calculation of Closing
Working Capital and/or the Closing Cash and are reasonably required by Buyer or
its Representatives in the calculation of Closing Working Capital and/or
Closing Cash.  Buyer shall complete its
review of the Closing Statement within forty-five (45) days after the delivery
thereof to Buyer.  Promptly following
completion of its review (but in no event later than the conclusion of the
forty-five (45) day period), Buyer may submit to Seller a letter regarding its
concurrence or disagreement with the accuracy of the Closing Statement; provided that any such letter must specify
(i) the items of the Closing Statement with which Buyer disagrees, (ii) the
adjustments that Buyer proposes to be made to the Closing Statement and (iii) the
specific amount of such disagreement and reasonable supporting documentation
and calculations and provided, further, that Buyer may only disagree
with the Closing Statement if Buyer’s proposed calculation will result in an
adjustment to the Purchase Price.  If
Buyer does not deliver a letter disagreeing with the accuracy of the Closing
Statement before the conclusion of such forty-five (45) day period, the Closing
Statement shall be final and binding upon the parties and Buyer shall be deemed
to have agreed with all items and amounts contained in the Closing
Statement.  If Buyer does deliver such a
letter, following such delivery,


 


31

















 


Seller
and Buyer shall attempt in good faith to resolve promptly any disagreement as
to the computation of any item in the Closing Statement.  Any items to which there is no disagreement
shall be deemed agreed.  If a resolution
of such disagreement has not been effected within fifteen (15) days (or longer,
as mutually agreed by the parties) after delivery of such letter,
notwithstanding the parties’ good faith efforts to resolve the disagreement,
then Seller and Buyer shall jointly engage the Accounting Referee to resolve on
a basis consistent with the Agreed Principles such disagreement regarding the Closing
Statement (a “Disputed Item”).  Each party shall cooperate with and make
available to the other party and the Accounting Referee all information,
records, data and working papers as may be reasonably requested by the
Accounting Referee in connection with the preparation and analysis of the
Closing Statement and the resolution of any disagreements relating thereto and
shall cause the Accounting Referee to render its determination with respect to
any Disputed Item within thirty (30) days of submission of such Disputed Item
to the Accounting Referee.  The
Accounting Referee shall adopt a position within the range of positions
submitted by Seller and Buyer with respect to any Disputed Item.  The Accounting Referee’s determination
regarding any Disputed Item shall be based solely on whether Seller included
such Disputed Item in or excluded such Disputed Item from the Closing Statement
or calculated such Disputed Item, as the case may be, in a manner consistent
with the Agreed Principles.  All
determinations made by the Accounting Referee shall be final, conclusive and
binding on the parties hereto, and neither of the parties hereto, nor any of
their respective Affiliates, shall seek recourse in the courts or other
tribunals, other than to enforce the Accounting Referee’s determination.  Subject to Section 13.07, judgment may
be entered to enforce such determination in any court of competent
jurisdiction.  Closing Working Capital as
finally determined in accordance herewith shall be referred to as the “Final Closing Working Capital.”  The Closing Cash as finally determined in
accordance herewith shall be referred to as the “Closing Cash Amount.” 
The fees, costs, and expenses of the Accounting Referee shall be shared
as follows:


 


(i)            if
the Accounting Referee resolves all of the Disputed Items in favor of Buyer’s
position (the Final Closing Working Capital and/or the Closing Cash Amount, as
the case may be, so determined is referred to herein as the “Low Value”), then Seller shall be obligated
to pay for all of the fees and expenses of the Accounting Referee;


 


(ii)           if
the Accounting Referee resolves all of the Disputed Items in favor of Seller’s
position (the Final Closing Working Capital and/or Closing Cash Amount, as the
case may be, so determined is referred to herein as the “High Value”), then Buyer shall be obligated
to pay for all of the fees and expenses of the Accounting Referee; and


 


(iii)          if
the Accounting Referee neither resolves all of the Disputed Items in favor of
Buyer’s position nor resolves all of the Disputed Items in favor of Seller’s
position (the Final Closing Working


 


32

















 


Capital
and/or the Closing Cash Amount, as the case may be, so determined is referred
to herein as the “Actual Value”),
Seller shall be responsible for such fraction of the fees and expenses of the
Accounting Referee for the Final Closing Working Capital and/or the Closing
Cash Amount, as the case may be, equal to (x) the difference between the
High Value and the Actual Value over (y) the difference between the High
Value and the Low Value, for the Final Closing Working Capital and/or the
Closing Cash Amount, as the case may be, and Buyer shall be responsible for the
remainder of the fees and expenses of the Accounting Referee.


 


(c)        If the
Final Closing Working Capital:


 


(i)            is
equal to or greater than an amount three percent (3%) below the target closing
working capital set forth on Exhibit E (the “Lower Working Capital Limit”) and is equal
to or less than an amount three percent (3%) above the target closing working
capital set forth on Exhibit E (the “Upper Working Capital Limit”), then no adjustments will be
made to the Purchase Price in respect of the Final Closing Working Capital;


 


(ii)           exceeds
the Upper Working Capital Limit, then Buyer shall be obligated to pay to Seller
the amount by which the Final Closing Working Capital exceeds the Upper Working
Capital Limit; or


 


(iii)          is
less than the Lower Working Capital Limit, then Seller shall be obligated to
repay to Buyer the amount by which the Lower Working Capital Limit exceeds the
Final Closing Working Capital.


 


(d)        Buyer
shall be obligated to pay to Seller the Closing Cash Amount, if any.


 


(e)        Any
payments to be made pursuant to Sections 2.08(c) and 2.08(d) shall
be made by wire transfer of immediately available funds to the account
designated in writing by Buyer or Seller, as the case may be, within five (5) Business
Days after the determination of the Final Closing Working Capital and the
Closing Cash Amount, as the case may be. 
For the avoidance of doubt, if either of the Final Closing Working
Capital or the Closing Cash Amount, as the case may be, is determined before
the other, Buyer or Seller, as the case may be, shall pay the other party any
amount owed pursuant to Section 2.08(c) or 2.08(d) in respect of
such determination within five (5) Business Days after such determination
(notwithstanding that the other has not yet been determined).  Any payment made pursuant to Section 2.08(c) or
2.08(d) shall be made with interest (such interest to be calculated on the
actual number of days elapsed) on such amount from (i) the date of the
delivery of a letter of disagreement, if there is a disagreement or (ii) 35
days from the Closing if there is no such letter of


 


33

















 


disagreement
(or if the Closing Statement has not yet been delivered by Seller), to the date
of such payment at a rate equal to six percent (6%) per annum.


 


Section 2.09.  GST and
QST Elections.  At the
Closing, Seller and Buyer (or their respective Affiliates) shall jointly
execute an election under section 167 of the Excise Tax Act (Canada) and an
election under section 75 of an Act respecting the Quebec sales tax (Quebec) in
the prescribed form, such that no GST or QST shall be payable in connection
with the purchase and sale of the Purchased Assets pursuant to the provisions
of this Agreement.  Buyer shall file the
joint elections with the returns required to be filed by Buyer under the Excise
Tax Act (Canada) and an Act respecting the Quebec sales tax (Quebec) for the
Buyer’s reporting periods in which the sale was made, in compliance with the
requirements of the Excise Tax Act (Canada) and an Act respecting the Quebec
sales tax (Quebec).


 


Section 2.10.  Irish
Purchased Assets.  Buyer and
Seller acknowledge and agree that this Agreement does not convey title to any
of the Irish Purchased Assets. Seller and Buyer shall use their commercially
reasonable efforts to ensure that, in relation to the Irish Purchased Assets, appropriate
documentation is entered into on the Closing Date to convey title to the Irish
Purchased Assets so as to mitigate Irish Stamp Duty.


 


ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF SELLER


 


Subject
to Section 13.03, except as set forth in the Disclosure Schedule delivered
by the parties concurrently with this Agreement (the “Disclosure Schedule”), Seller represents
and warrants to Buyer as of the date hereof and as of the Closing Date that:


 


Section 3.01.  Corporate
Existence and Power.  Each of
Seller and each Affiliate of Seller that owns any right or interest in any of
the Purchased Assets and that will sell, transfer or convey any of the
Purchased Assets to Buyer (or, subject to Section 13.05, its designated
Affiliate) at the Closing (collectively, the “Selling
Entities”) and the Subsidiary is an entity duly incorporated or
organized, as applicable, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization, as applicable, and has
all powers and all material Permits required to own, lease and operate its
properties and to carry on its business as now conducted.  Seller, the Subsidiary and each Selling
Entity is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where such qualification is necessary, except for
those jurisdictions where failure to be so qualified would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


 


Section 3.02.  Corporate
Authorization; Binding Effect.  (a) 
Seller and each Selling Entity, as the case may be, has or will have full
corporate (or other


 


34

















 


limited
company) power and authority to execute and deliver this Agreement and/or each
other Transaction Document to which it is a party, to perform its obligations
hereunder and thereunder, as applicable, and to consummate the transactions
contemplated hereby and thereby.  The
execution and delivery by Seller and each Selling Entity, as the case may be,
of the Transaction Documents to which it is a party and each other document,
agreement or instrument to be executed and delivered by Seller and each Selling
Entity, as the case may be, pursuant to the Transaction Documents, and the
performance by Seller and each Selling Entity, as the case may be, of its
obligations hereunder and thereunder have been or at the Closing will have been
duly authorized by all necessary action on the part of Seller and each Selling
Entity, as applicable.


 


(b)        This Agreement
has been, and each other Transaction Document to which Seller or any Selling
Entity is a party will be, duly and validly executed and delivered by Seller
and/or the applicable Selling Entity, as the case may be,  and this Agreement is, and each of the other
Transaction Documents to which Seller or a Selling Entity is a party, when
executed and delivered by Seller or a Selling Entity, as applicable, will
constitute, assuming due execution and delivery by the other parties to such
Transaction Document, a valid and binding obligation of Seller and/or the
applicable Selling Entity, as the case may be, enforceable against Seller
and/or the applicable Selling Entity in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws affecting creditors’ rights
generally or by general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).


 


Section 3.03. Governmental Authorization.  The execution, delivery and
performance by Seller or any of the Selling Entities, as the case may be, of
this Agreement and the other Transaction Documents to which it is a party and
each other document, agreement or instrument to be executed and delivered by
Seller or any of the Selling Entities, as the case may be, pursuant to this
Agreement and the other Transaction Documents and the consummation of the
transactions contemplated hereby and thereby require no material action,
consent, approval, waiver or exemption by or of, or any filing with, or
notification to, any Person other than compliance with any applicable
requirements of (a) the HSR Act and other applicable Antitrust Laws set
forth on Schedule 3.03(a), (b) the U.S. Federal Communications Commission
(the “FCC”) under the
Communications Act of 1934, as amended (the “Communications
Act”), (c) Industry Canada under the Radiocommunication Act, (d) the
U.S. Department of State’s Directorate of Defense Trade Controls (the “DDTC”) under the International Traffic in
Arms Regulations of the United States (22 C.F.R. §§ 120-130) (the “ITAR”), (e) the U.S. Department of
Commerce’s Bureau of Industry and Security (the “BIS”) under the Export Administration Regulations (15 C.F.R. §
730 et seq.) (the “Export Administration Regulations”), (f) FAR
Subpart 42.12 with respect to the novation of the prime Government Contracts
and (g) the United States Defense Security Service (the “DSS”) under the National Industrial
Security Program Operating Manual, as amended (the “NISPOM”).


 


35














 


Section 3.04.  Subsidiary
Capital Structure.  Schedule
3.04 sets forth the authorized capitalization of the Subsidiary and the number
of shares of each class of capital stock or other equity interests of the
Subsidiary currently outstanding, all of which are duly authorized, validly
issued and outstanding, fully paid and non-assessable and were issued in
compliance with all applicable securities laws and any preemptive rights or
rights of first refusal of any Person and, except as set forth on Schedule 3.04,
are owned, of record and beneficially, by a Selling Entity, directly or
indirectly, free and clear of any Liens. 
Except as set forth on Schedule 3.04, there are no outstanding warrants,
options, subscriptions, puts, calls, rights, convertible or exchangeable
securities or other securities of the Subsidiary or obligations of the
Subsidiary to issue any shares of capital stock or other securities of the
Subsidiary, and no capital stock or other securities of the Subsidiary are
reserved for issuance for any purpose. Other than the Shareholders Agreement
relating to Com-Net Ericsson Polska Sp. Z.o.o. (n/k/a as M/A-COM Poland sp. Z
o.o.) between Mr. Tomasz Rzeszutek, Mr. Grzegorz Galiński, Mr. Joanna
Pagacz, Mr. Jaroslaw Wiktorowicz, Mr. Marcin Drożdżyk, Mr. Tadeusz
Górski and Com-Net Ericsson Critical Radio Systems Inc. dated as of December 11,
2000 (the “Subsidiary Shareholders Agreement”),
there are no agreements, commitments or contracts relating to the issuance,
sale, transfer or voting of any equity securities or other securities of the
Subsidiary.  Seller has provided to Buyer
or its Representatives a true complete and accurate copy of the Subsidiary
Shareholders Agreement (including all amendments thereto, if any).  Other than M/A-COM, M/A COM Canada, Raychem
International, the Subsidiary and any other Seller or Seller Affiliate that
employs Business Employees, Seller has no other direct or indirect subsidiaries
or any equity interest or investment (including as a joint venturer) in any
Person that is primarily engaged in the Business.


 


Section 3.05. 
Noncontravention.  The
execution, delivery and performance by Seller or any of the Selling Entities,
as the case may be, of the Transaction Documents to which it is a party, and
the consummation of the transactions contemplated hereby and thereby, do not
and will not, with or without the lapse of time, notice or both, (a) violate
the certificate of incorporation or bylaws (or equivalent organizational
documents) of Seller (or such Seller Entity) or the Subsidiary, (b) assuming
compliance with the matters referred to in Section 3.03 or Schedule
3.03(a), violate any Applicable Law, (c) assuming compliance with the
matters referred to in Section 3.03, violate, conflict with, constitute a
default under or give rise to any right of termination, cancellation or
acceleration of any right or obligation of Seller or any Affiliate of Seller or
result in a breach of any provision of, or the loss of any benefit to which
Seller or any Affiliate of Seller is entitled under, any Business Contract,
Permit set forth (or required to be set forth) on Schedule 3.20 or Contract of
the Business relating to reimbursement obligations in respect of any Parent
Guarantee, Seller Surety Bond or Parent LofC or (d) result in the creation
or imposition of any Lien (other than Permitted Liens) on any Purchased Asset
or any asset or property of the Subsidiary, except with respect to clauses (b),
(c) and (d) for any such violations, conflicts, breaches, defaults,
terminations, cancellations, accelerations


 


36

















 


or
Liens that would not be material to the Business or the Purchased Assets, taken
as a whole.


 


Section 3.06.  Financial
Information; Undisclosed Liabilities.  (a)  Schedule
3.06(a) sets forth (i) the audited combined balance sheet of the
Business as at September 26, 2008 (the “Balance
Sheet Date”) and the related combined statements of income and cash
flows of the Business for the fiscal year then ended, together with the notes
thereto and other financial information included therewith (the “Audited Financial Statements”) and (ii) the
unaudited combined balance sheet of the Business as of December 26, 2008
and the related combined statement of income of the Business for the fiscal
quarter then ended (the “Interim Financial
Statements”, and together with the Audited Financial Statements, the
“Financial Statements”).


 


(b)           Except as described in Schedule
3.06(b), the Financial Statements were prepared in accordance with GAAP,
consistently applied.  The combined
balance sheets of the Business set forth in the Financial Statements fairly
present, in all material respects, the financial position of the Business as of
the dates thereof, and the related statements of income and cash flows set
forth in the Financial Statements fairly present, in all material respects, the
results of operations and cash flows of the Business for the time periods
indicated except, in relation to the Interim Financial Statements, the absence
of footnotes and normal year end adjustments. 
As of September 26, 2008, an audit of Seller Parent and its
subsidiaries’ internal control over financial reporting was performed, based
upon the criteria established in Internal
Control — Integrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission. 
This audit did not identify any material weaknesses or significant
deficiencies in the internal controls over financial reporting that were
directly related to the Business.


 


(c)           The Business does not have
Liabilities that are required to be set forth on a consolidated balance sheet
prepared in accordance with GAAP (or, in respect of the Audited Financial
Statements, in the notes thereto), except (1) Liabilities reflected on the
balance sheets contained in the Financial Statements or disclosed in the notes
thereto included in the Financial Statements, (2) Liabilities incurred in
the ordinary course of the Business since the date of the Interim Financial
Statements, (3) Liabilities incurred in connection with the transactions
contemplated hereby, (4) Excluded Liabilities and (5) Liabilities for
future performance under any Contract relating to the Business or any Real
Property Lease or outstanding purchase order for goods or services.  For the avoidance of doubt, this Section 3.06(c) is
not limited to matters not specifically addressed elsewhere in Article 3.


 


Section 3.07.  Absence of
Certain Changes.  Except as
contemplated by this Agreement, since the Balance Sheet Date and through the
date hereof, (a) Seller and its Affiliates have conducted the Business in
all material respects in the ordinary course of business consistent with past
practice, (b) there has not occurred any Material Adverse Effect and (c) with
respect to the Business no


 


37

















 


action
has occurred that if taken after the date of this Agreement would constitute a
breach of Section 5.01 (excluding Section 5.01(b)(x)).


 


Section 3.08.  Material
Contracts.  (a)  Schedule
3.08(a) sets forth each of the following Contracts which, with respect to
the Purchased Assets or the Business and as of the date hereof, Seller or any
of its Affiliates is a party to or otherwise bound by:


 


(i)            any
lease (whether of real or personal property) providing for (A) annual rental
payments of $250,000 or more or (B) aggregate rental payments of
$1,000,000 or more;


 


(ii)           any
Contract, other than ordinary course purchase orders, for the purchase of
materials, supplies, goods, services, equipment or other assets providing for
either (A) payments in the course of the 2008 fiscal year by Seller or
such Affiliate of $5,000,000 or more or (B) aggregate payments by Seller
or such Affiliate during the prior three fiscal years of $15,000,000 or more,
in each case, that cannot be terminated on not more than 60 days’ notice
without payment by Seller or such Affiliate of any material penalty;


 


(iii)          any
sales, distribution or other similar Contract, including any Governmental
Contract (other than any program Contract), other than ordinary course purchase
orders, providing for the sale by Seller or such Affiliate of materials,
supplies, goods, services, equipment or other assets that provides for either (A) revenue
recognized in the 2008 fiscal year by Seller or such Affiliate of $5,000,000 or
more or (B) revenue to be recognized by Seller or such Affiliate over the
remaining life of the Contract of $15,000,000 or more;


 


(iv)          (A) any
program Contract which as of February 27, 2009 (x) was less than 75%
complete and had an uncompleted value of $1,000,000 or more or (y) had an
uncollected value in excess of $1,000,000 and (B) any program Contract
entered into after February 27, 2009 which has a value in excess of
$5,000,000;


 


(v)           any
partnership, joint venture or other similar Contract providing for the
formation of any such relationship;


 


(vi)          any
Contract (not including Contracts for abandoned transactions) relating to the
acquisition or disposition of any material business or any portion thereof
(whether by merger, sale of stock, sale of assets or otherwise) or, other than
in the ordinary course of business, material assets entered into (A) within
the past five years or (B) at any time prior to the Closing Date for which
Seller or its Affiliates have continuing obligations other than immaterial obligations
such as access;


 


38

















 


(vii)         any
Contract that limits or purports to limit the ability of the Business
(including any Business Employee acting for the Business) to: (A) sell any
material products or services of or to any other Person, (B) engage in any
material line of business or (C) compete with or obtain material products
or services from any other Person;


 


(viii)        any
material intercompany agreement with or for the benefit of Seller or an
Affiliate of Seller to the extent Seller or such Affiliate is not engaged in
the conduct of the Business;


 


(ix)           any
material license, sublicense and other agreements pursuant to which Seller or
its Affiliates (A) licenses from any Person any Licensed Intellectual Property
Rights (excluding licenses for commercial off the shelf computer software that
are generally available and which have an acquisition cost of $50,000 or less)
or (B) grants a license to use any Transferred Patent or Owned
Intellectual Property Rights except for non-exclusive licenses granted in the
ordinary course of business consistent with past practice in connection with
the sale of goods or services by Seller and its Affiliates;


 


(x)            any
Contract granting to any Person a put, call, right of first-refusal, right of
first offer or similar preferential right in any of the material Purchased
Assets or any material assets or properties of the Business;


 


(xi)           any
settlement agreement, non-suit agreement, non-prosecution agreement or similar
agreement or order, judgment, ruling, injunction, assessment, award, decree or
writ of any Governmental Authority to which Seller or any Affiliate is a party
and which requires ongoing compliance measures with respect to the Purchased
Assets or the conduct of the Business;


 


(xii)          any
material Contract relating to the consignment, custody, warehousing of
inventory or any similar Contract;


 


(xiii)         any
Contract, other than ordinary course purchase orders on an arm’s length basis
for goods or services and Contracts regarding employment or employment benefits
entered into in the ordinary course of business, relating to the Purchased
Assets or the conduct of the Business by and between Seller or any of its
direct or indirect Affiliates, on the one hand, and any other direct or indirect
Affiliate of Seller or any director, manager or officer of Seller or any of its
direct or indirect Affiliates, on the other hand; or


 


(xiv)        any
other Contract that is material to the operation of the Business or the
Purchased Assets and does not fall into any of the categories above in Section 3.08(a)(i) -
(xiii).


 


39

















 


(b)           Each Contract set forth on (or
required to be set forth on) Schedule 3.08(a) or that would be required to
be set forth on Schedule 3.08(a) if entered into prior to the date hereof
and not after the date hereof and prior to Closing (collectively, the “Business Contracts”) is in full force and
effect and is a valid and binding obligation of Seller and/or any of its
Affiliates that is a party thereto, and to the knowledge of Seller, is a valid
and binding obligation of each other party thereto, enforceable in accordance
with its terms.  None of Seller and its
Affiliates or, to the knowledge of Seller, any other party thereto, is in default
or breach in any material  respect under
the terms of any Business Contract or any other material Contract of the
Business, and, to the knowledge of Seller, no event or circumstance has
occurred that, with notice or lapse of time or both, would constitute any such
default or breach thereunder.  Materially
true, correct and complete copies of each Business Contract (including
amendments or other modifications thereto) have been delivered to Buyer.  As of the date hereof, none of Seller or its
Affiliates has received any notice of termination or any notice threatening
termination of any Business Contract by any third Person.


 


Section 3.09.  Government
Contracts.  (a) Except as
set forth in Schedule 3.09(a), (i) none of the Business Employees is (or
during the past 18 months has been), except as to routine security
investigations, under administrative, civil or criminal investigation,
indictment or information by a Governmental Authority, (ii) there is no
pending (or to the knowledge of Seller, threatened) audit or investigation of
the Business or any Business Employee with respect to any alleged irregularity,
impropriety, violation, misstatement or omission arising under or relating to a
Government Contract or Government Contract Bid, (iii) no termination for
convenience, termination for default, stop work, cure notice or show cause
notice has been issued with respect to any Government Contract, and (iv) during
the past 18 months, neither Seller nor its Affiliates has made a voluntary or
mandatory disclosure with respect to any alleged irregularity, impropriety,
violation, misstatement or omission arising under or relating to a Government
Contract or Government Contract Bid with respect to the Business, other than
inquiries, audits and reconciliations that would not, individually or in the
aggregate, materially affect the Business. 
Neither Seller and its Affiliates nor any of the Business Employees has
made any material misstatement or omission in connection with any disclosure
that has led to, or would be reasonably expected to lead to, any of the
consequences set forth in clause (i), (ii) or (iii) of the
immediately preceding sentence or any other material damage, penalty
assessment, recoupment of payment or disallowance of cost.


 


(b)           Except as set forth in Schedule
3.09(b), there are (i) no material claims pending (or to the knowledge of
Seller, threatened) against Seller or its Affiliates by a Governmental
Authority or by any prime contractor, subcontractor, or vendor arising under
any Government Contract or Government Contract Bid with respect to the Business
and (ii) no material disputes pending (or to the knowledge of Seller,
threatened) between Seller or its Affiliates and any Governmental
Authority  or between Seller or its
Affiliates and any prime contractor, subcontractor, or vendor of the Business
arising under or relating to


 


40

















 


any
Government Contract or Government Contract Bid with respect to the Business.


 


(c)           Except as set forth in Schedule
3.09(c), neither Seller nor any of the Business Employees is (or during the
past 18 months has been) suspended, debarred or proposed for or threatened with
debarment or suspension, otherwise determined ineligible or disqualified from
doing business with a Governmental Authority or is (or during such period was)
subject of a finding of non-responsibility or ineligibility for contracting
with a Governmental Authority.


 


(d)           Seller and its Affiliates are (and
for the past 3 years have been) in compliance, in all material respects, with
all Applicable Laws relating to obtaining, administering and performing their
Government Contracts.  Seller and its
Affiliates have not engaged in any conduct with regard to any Government
Contract or Government Contract Bid that would constitute a criminal violation
or a civil fraud or a basis for suspension or debarment.


 


(e)           All test and inspection results that
Seller or any of its Affiliates has provided to any U.S. federal Governmental
Authority pursuant to any Government Contract relating to the Business or to
any other Person pursuant to any such Government Contract or as part of the
delivery to the U.S. federal Governmental Authorities pursuant to any such
Government Contract of any article designated, engineered or manufactured in the
Business were complete and correct in all material respects as of the date so
provided.  Seller and its Affiliates have
provided all test and inspection results to the appropriate U.S. federal
Governmental Authority pursuant to all Government Contracts related to the
Business as required by Applicable Law and the terms of the applicable
Government Contracts.


 


(f)            Schedule 3.09(f) sets forth all
of the material facility security clearances held by Seller or its Affiliates
with respect to the Purchased Assets or the Business other than any facility
security clearances that are not permitted to be disclosed under any Applicable
Law.


 


Section 3.10. 
Litigation.  Schedule
3.10 sets forth each material Legal Proceeding currently pending (or which has
been pending within the past 18 months), or, to the knowledge of Seller,
threatened against or affecting the Business or the Purchased Assets, before
any court or arbitrator or any Governmental Authority.  As of the date hereof, there is no Legal
Proceeding pending, or to the knowledge of Seller threatened, which in any
manner challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by this Agreement or challenges the validity or
enforceability of this Agreement.


 


Section 3.11.  Compliance
with Laws and Court Orders.  With
respect to the Business or the Purchased Assets, neither Seller nor any of its
Affiliates is (or in the past 3 years has been) in material violation of any
material Applicable Law.


 


41

















 


As of
the date hereof, neither Seller nor any of its Affiliates has received with
respect to the Business or the Purchased Assets any notice from any
Governmental Authority regarding any actual or alleged material violation of,
or failure to comply with, any material Applicable Law.


 


Section 3.12. 
Properties.  (a) 
Schedule 3.12(a) sets forth a list of all real property that Seller or any
of its Affiliates owns, leases, operates or subleases in connection with the
conduct of the Business, and the owner or lessee, as applicable, for such real
property.  Materially correct and
complete copies of all Real Property Leases have been made available to Buyer.


 


(b)           Each Real Property Lease is a valid
and binding agreement of Seller or an Affiliate of Seller, is free and clear of
all Liens, except for Permitted Liens, and is in full force and effect, and
none of Seller, such Affiliate or, to the knowledge of Seller, any other party
thereto is in default or breach in any material respect under the terms of any
such Real Property Lease, and, to the knowledge of Seller, no event or
circumstance has occurred that, with notice or lapse of time or both, would
constitute any event of default thereunder, in each case which would reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect.


 


Section 3.13.  Title to
Purchased Assets; Sufficiency.  Seller
and its Affiliates own and have good and marketable title to all material
Purchased Assets, and the Subsidiary has good and marketable title to all of
the properties and assets owned and used by it in the conduct of the Business,
in each case, free and clear of all Liens, other than Permitted Liens or Liens
that would not materially detract from the value or the intended use of the
Purchased Assets.  The Purchased Assets,
together with the services to be provided by Seller or its Affiliates to Buyer
or its Affiliates pursuant to the Transition Services Agreement, are
sufficient, in all material respects, for the conduct of the Business as
currently conducted and are the only assets and properties used in the conduct
of the Business as currently conducted except for (i) the Excluded Assets,
(ii) Intellectual Property Rights (the sufficiency of which are covered in
Section 3.14) and (iii) shared services utilized both by the Business
and the Retained Businesses and not provided under the Transition Services
Agreement as set forth on Schedule 3.13. 
Nothing in this Section 3.13 shall be deemed to constitute a
representation or warranty as to the adequacy of the amounts of working
capital, including cash, of the Business as of the Closing or the availability
of the same.


 


Section 3.14.  Intellectual
Property.  (a) 
Schedule 3.14(a) contains a true, correct and complete list of all registrations
and applications for registrations included in the Owned Intellectual Property
Rights, with the application number and/or registration/issue number,
application and/or registration date, title or mark, country or other
jurisdiction and owner(s), as applicable (the “Registered Intellectual Property”).  Neither Seller nor any of its Affiliates are
in default with respect to any renewal or maintenance fees currently due in
respect of any material Registered Intellectual Property or any material Transferred
Patents.


 


42

















 


Immediately
upon Closing, Buyer and/or its Affiliates shall own all of Seller’s and its
Affiliates’ right, title and interest in and to the material Transferred
Patents and the material Owned Intellectual Property Rights, in each case free
from Liens other than Permitted Liens.


 


(b)           Seller and/or its Affiliates are the
sole owners (including with respect to any current or former Representatives of
Seller and/or its Affiliates) of all material Transferred Patents and material
Owned Intellectual Property Rights and hold all right, title and interest in
and to all material Transferred Patents and material Owned Intellectual
Property Rights, free and clear of any Liens other than Permitted Liens.  To the extent proprietary, all designs and
specifications (including all embodiments of such designs and specifications,
such as molds, models, formulae, patterns, compilations, drawings, blueprints
and other materials (but not including bills of material, approved vendor
lists, and other purchasing-related documents) used in or intended to be used
in the manufacture of any Relevant Products) for the Relevant Products are, in
all material respects, solely owned by Seller or its Affiliates free and clear
of any Liens other than Permitted Liens, and immediately after the Closing,
Buyer and its Affiliates will own free and clear of any Liens other than
Permitted Liens and have the right to obtain possession from contract
manufacturers of the Business of all of such designs and specifications and
their embodiments.


 


(c)           To the knowledge of Seller, the
operation of the Business by Seller and its Affiliates has not infringed,
misappropriated or otherwise violated any Intellectual Property Rights of any
Person.  There is no material Legal
Proceeding pending against, or, to the knowledge of Seller, threatened against,
Seller or any Affiliate of Seller (i) based upon, or challenging or
seeking to deny or restrict, the rights of Seller or any Affiliate of Seller in
any of the Owned Intellectual Property Rights or Transferred Patents or (ii) except
as set forth on Schedule 3.14(c). alleging that the conduct of the Business as
currently conducted infringes, misappropriates, or otherwise violates any
Intellectual Property Right of any third party. 
None of the material Transferred Patents or material Owned Intellectual
Property Rights has been adjudged invalid or unenforceable in whole or part,
and, to the knowledge of Seller, all such Owned Intellectual Property Rights
and Transferred Patents are valid and enforceable.


 


(d)           The Transferred Patents include all
Patents owned by Seller and its Affiliates and held for use or used primarily
in the conduct of the Business or that relate to the Targeted Technology.  Other than the Excluded Marks and any
Software owned by Seller and set forth on Schedule 2.02(g), the Owned
Intellectual Property Rights, together with the Transferred Patents and any
other Intellectual Property Rights granted to Buyer pursuant to this Agreement,
include all of the Intellectual Property Rights owned by Seller or any of its
Affiliates and necessary to conduct the Business as currently conducted.


 


(e)           To the knowledge of Seller, no Person
has infringed, misappropriated or otherwise violated any Owned Intellectual
Property Right or


 


43

















 


any
Transferred Patent.  Seller and its
Affiliates have taken commercially reasonable steps to maintain the
confidentiality of all material Intellectual Property Rights that are used or
held for use in the conduct of the Business and the value of which to the
Business is contingent upon maintaining the confidentiality thereof.


 


(f)            As of the date hereof, with respect
to the Business, neither Seller nor any of its Affiliates has received any
notification from any Person regarding material non-compliance or violation of
the standards of any industry standard setting organization.


 


(g)           Schedule 3.14(g) sets forth each
material Contract pursuant to which Seller and its Affiliates obtain the right
to use any Information System of any third party that is used in the conduct of
the Business (other than any such Contract pursuant to which Seller and its
Affiliates lease any computer hardware from a third party for use in connection
with their respective information technology systems) (the “Information Systems Contracts”).  None of Seller and its Affiliates is in
default or breach in any material respect under the terms of any Information
Systems Contract.


 


(h)           To the knowledge of Seller, (i) there
are no material problems or defects in any Owned Software that prevent such
Owned Software from operating substantially as described in its related
documentation or specifications and (ii) such Owned Software operates, in
all material respects, in accordance with its documentation and specifications
and has no other material problems or defects. 
To the knowledge of Seller, the Owned Software does not contain any
protection feature designed to prevent its use, including any computer virus,
disabling mechanism, worm, software lock, drop dead device, Trojan horse
routine, trap door, time bomb, hidden command, hidden code, instructions key or
any other code or instruction that may be used to access, modify, delete,
damage or disable the Owned Software, or any other Software or Information
System with which the Owned Software may be integrated.


 


(i)            None of the material products sold,
licensed or distributed by the Business includes Software copied or derived
from any software code that is licensed under any terms or conditions that
require that any Software be (i) made available or distributed in Source
Code form; (ii) licensed for the purpose of making derivative works; (iii) licensed
under terms that allow reverse engineering, reverse assembly or disassembly of
any kind; or (iv) redistributable at no charge.


 


(j)            Seller and its Affiliates own and
have good title to all DTX Patents and DTX Trademarks, free and clear of all
Liens, other than Permitted Liens. 
Except as set forth in the first sentence of this Section 3.14(j) ,
notwithstanding anything to the contrary in this Section 3.14, Seller does
not make any other representations or warranties with respect to the DTX
Patents and DTX Trademarks.


 


44

















 


Section 3.15.  Taxes.  (a)  The Subsidiary and each
of the Selling Entities have filed or caused to be filed, or will file or cause
to be filed, on a timely basis all material Tax Returns required to be filed on
or before the Closing Date (including extensions) with respect to the
Non-Entity Business or the Purchased Assets and all such Tax Returns are (or
will be when filed) complete, correct, and accurate in all material
respects.  Seller has paid or caused to
be paid, or will pay or cause to be paid, on a timely basis all material Taxes
imposed on the Non-Entity Business or the Purchased Assets that have become due
or payable on or before the Closing Date, except Taxes being contested in good
faith or Taxes being assumed by Buyer under this Agreement.


 


(b)           The Subsidiary and each of the
Selling Entities have withheld and paid all Taxes required to have been
withheld and paid in connection with any amounts paid or owing to an employee,
independent contractor, creditor, stockholder or other third party.


 


(c)           No Taxing Authority has made or
proposed to make any claim concerning the Tax Liability of the Subsidiary.  The Subsidiary has not waived any statute of
limitations in respect to Taxes or agreed to any extension of time with respect
to a Tax assessment or deficiency.


 


(d)           The Subsidiary is not and has not
been a member of a consolidated, combined or unitary group for Tax purposes and
has no Liability for the Taxes of any Person under Treas. Reg. Section 1.1502-6,
or any similar provision of state, local or non-U.S. law, as transferee or
successor, by agreement or otherwise.


 


(e)           The Subsidiary will not be required
to include any item of income in, or exclude any item of deduction from,
taxable income for any taxable period or portion thereof ending after the
Closing Date as a result of any (i) change in method of accounting; (ii) closing
or similar agreement entered into with a Taxing Authority; (iii) intercompany
transaction; (iv) installment sale or open transaction; (v) receipt
of a prepaid amount; or (vi) deferral of cancellation of indebtedness
income, in each case occurring during a taxable period or portion thereof
ending on or before the Closing Date.


 


(f)            No “Stock Disposition” within the
meaning of IRS Notice 2008-111 has occurred with respect to the shares of
capital stock of M/A-COM.


 


(g)           Each Seller Affiliate that is
transferring or conveying any Purchased Asset located in Canada is registered
under Part IX of the Excise Tax Act (Canada) and under Chapter VIII of an
Act respecting the Quebec sales tax with the following registration numbers:
86581 9189 RT0001 GST, 1023215787TQ0001 QST.


 


Section 3.16.  Finders’
Fees.  Except for Barclays
Capital Inc., whose fees and expenses will be paid by Seller, there is no
investment banker, broker, finder or other intermediary which has been retained
by or is authorized to act on behalf


 


45

















 


of
Seller or any of its Affiliates who might be entitled to any fee or commission
in connection with the transactions contemplated by this Agreement.


 


Section 3.17. 
Personnel.  (a) 
Schedule 3.17(a) contains a correct and complete list identifying each
material Benefit Plan and identifies whether each such Benefit Plan is
sponsored or maintained by Seller or any Affiliate thereof.  Correct and complete copies of such Benefit
Plans (and, if applicable, related trust or funding agreements or insurance
policies), including any amendments thereto (or, with respect to Benefit Plans
that are unwritten, correct and complete written descriptions thereof), have
been furnished to Buyer.  Notwithstanding
the foregoing, with respect to any Benefit Plan that is an employment
agreement, Seller has furnished to Buyer the applicable form of such agreement and
represents that such individual agreement is not materially inconsistent with
such form.  For any Assumed Plan, copies
of, as applicable, the annual report and Tax Return filed in connection with
such Assumed Plan for the most recently completed plan year, including any Form 5500
and the schedules thereto and any Form 990, the most recent summary plan
description (including any summaries of material modification) prepared in
connection with any such Assumed Plan, the most recent IRS determination letter
(or any open requests therefor), the most recent confirmation of registration
under the Income Tax Act (Canada) or the Taxes Consolidation Act 1997
(Ireland), where applicable, and the actuarial and financial reports with
respect to such Assumed Plan for the most recently completed plan year have
been furnished to Buyer.


 


(b)           Each Benefit Plan which is intended
to be “qualified” within the meaning of Section 401(a) of the Code
has received a favorable determination letter from the IRS (or has submitted,
or is within the remedial amendment period for submitting, an application for a
determination letter with the IRS and is awaiting receipt of a response) and
each Benefit Plan which is required to be registered under the Taxes
Consolidation Act 1997 (Ireland) or the Income Tax Act (Canada) and any applicable
Federal or Provincial pension standards legislation in Canada is so registered
and, to the knowledge of Seller, no event has occurred and no condition exists
as of the date hereof that would reasonably be expected to result in the
revocation of any such determination or registration.  No Legal Proceeding has been made or
commenced or, to the knowledge of Seller, been threatened, with respect to any
Assumed Plan (other than routine claims for benefits payable in the ordinary
course, and appeals of such denied claims). 
Each Assumed Plan has been administered in all material respects in
accordance with its terms and complies in form and has been administered in all
material respects in accordance with ERISA, the Code and other Applicable Law,
including the Income Tax Act (Canada) and any applicable Federal or Provincial
pension standards legislation in Canada and the Taxes Consolidation Act of 1997
(Ireland), and there has been no notice issued by any Governmental Authority
questioning or challenging such administration or compliance.


 


(c)           Seller and each Affiliate of Seller
has paid and discharged all of its Liabilities arising under ERISA, the Code or
other Applicable Law relating to the


 


46

















 


provision
of benefits to employees or former employees or the taxation thereof of a
character which, if unpaid or unperformed, would result in the imposition of a
Lien against the properties or assets of the Business.  Seller and its ERISA Affiliates have no
material Liability of any kind related to an Assumed Plan, the Business or the
Business Employees (i) on account of any violation of the health care
continuation requirements of Part 6 of Title I of ERISA or Section 4980B
of the Code; (ii) under Section 502(i) or Section 502(l) of
ERISA or Section 4975 of the Code; (iii) under Section 303 of
ERISA or Section 430 of the Code; or (iv) under Title IV of ERISA,
except in each case any such Liability required by the terms of such Assumed
Plan.


 


(d)           None of the Benefit Plans is a
“multiemployer plan” as defined in Section 3(37) of ERISA or under the
Income Tax Act (Canada) or any Federal or Provincial pension standards
legislation in Canada, and no Liability has been or is expected to be incurred
in connection with the Business with respect to a “multiemployer plan”.


 


(e)           Schedule 3.17(e) identifies each
Benefit Plan that is a “registered pension plan” or “registered retirement
savings plan” as those terms are defined in the Income Tax Act (Canada), or an
“approved” plan within the meaning of the Taxes Consolidation Act, 1997
(Ireland).


 


(f)            To the knowledge of Seller, no oral
or written representations have been made to Business Employees or Former
Employees promising or guaranteeing any employer payment or funding or continuation
of benefits under any Assumed Plan for any period of time or limiting the
ability of the plan sponsor to amend or terminate such plan at any time,
without Liability.  To the knowledge of
Seller, there is not in existence nor has any proposal been announced or
commitment given or promise made to amend or change the terms or benefits
provided under an Assumed Plan which is not set out in the documents provided
to the Buyer pursuant to Section 3.17(a).


 


(g)           The Tyco Electronics Cork Pension
Scheme (the “Irish Benefit Plan”)
is a defined contribution pension scheme within the meaning of the Pensions Act
1990-2009, was established as such and has not been established in succession
to, and has not previously been converted from, a defined benefit pension
scheme within the meaning of Section 2(1) of the Pensions Act
1990-2009, and no assurance, promise or guarantee (oral or written) has been
made or given to any person entitled, or contingently entitled, to benefit
under the Irish Benefit Plan that any particular rate level or amount of
benefits (other than insured lump sum death in service benefits) would be
provided to or in respect of him under the Irish Benefit Plan. The Irish
Benefit Plan is operated and has always been operated in compliance with the
terms of the trust and no discretionary practices are operated by the Buyer or
the trustees of the Irish Benefit Plan.


 


47














 


(h)           The consummation of the transactions
contemplated by this Agreement will not (i) accelerate the time of payment
or vesting or trigger any payment of compensation or benefits under, or
increase the amount payable or trigger any other obligation pursuant to, any
Assumed Plan or (ii) result in any material breach, violation or default
under any Assumed Plan.


 


(i)            Seller represents that, subject to
Buyer’s compliance with the covenants set forth in the first sentence of Section 9.01(a),
the termination of employment of a U.S. Business Employee in accordance with
the last sentence of Section 9.01(a) shall not give rise to any
severance, termination pay, notice period or similar Liabilities.  Seller represents that, to the knowledge of
Seller, (A) subject to Buyer’s compliance with the covenants set forth in
the first sentence of Section 9.02, the offer of employment to a Canadian
Business Employee, other than a Quebec Business Employee, in accordance with
the first sentence of Section 9.02, and the continuation of employment of
a Quebec Business Employee, in accordance with the second sentence of Section 9.02,  shall not give rise to any severance,
termination pay, notice period or similar Liabilities other than those that
arise under Applicable Law and (B) subject to Buyer’s compliance with the
covenants set forth in the second sentence of Section 9.03, the takeover
of employment of an Irish Business Employee in accordance with the second
sentence of Section 9.03 will not give rise to any severance, termination
pay, notice period or similar Liabilities other than those that arise under
Applicable Law.


 


(j)            Other than as set forth in this Section 3.17
(Personnel), Section 3.05 (Noncontravention), Section 3.06 (Financial
Information; Undisclosed Liabilities) and Section 3.10 (Litigation),
Seller does not make any representation or warranty with respect to employee
benefit plan matters.


 


Section 3.18.  Labor
Matters.  (a)  With
respect to the Business, Seller and each of its Affiliates is currently (and
for the past 3 years has been) in compliance, in all material respects, with
all Applicable Laws regarding employment, including Applicable Laws regarding
practices, terms and conditions of employment, wage and hour, compensation,
equal pay, affirmative action (including E.O. No. 11246), discrimination,
equal employment opportunity, workers’ compensation and occupational health and
safety, privacy and protection of personal information and data, payments of
social or social security and similar Taxes and obligations (contractual or
otherwise).


 


(b)           With respect to the Business, Seller
and each of its Affiliates is currently (and for the past 3 years has been) in
compliance, in all material respects, with all Applicable Laws regarding labor
matters. With respect to the Business, neither Seller nor any of its Affiliates
is (nor for the past 18 months has been) engaged in any unfair labor
practice.  There is not (and during the
past 18 months there has not been) any unfair labor practice complaint or
charge against, Seller or any of its Affiliates, or any of their respective
Representatives, pending or, to the knowledge of Seller, threatened before the
National Labor Relations Board or


 


48

















 


other
Governmental Authority with respect to the Business or any Business Employee.


 


(c)           There is not (and during the past 18
months there has not been) any  labor
strike or material dispute, lockout, slowdown, work stoppage or other
similar action or incident pending or, to the knowledge of Seller, threatened
or reasonably anticipated, against or involving the Business.


 


(d)           Schedule 3.18(d) sets forth each
collective bargaining, representation, works council, labor or other agreement
with a trade or national union, works council or other employee representative
group and any binding customs or practices with respect to any of the foregoing
applicable to any Business Employee. 
Except as set forth on Schedule 3.18(d), no union is currently certified
or otherwise represents any Business Employee, and there is no union
representation question or other organizational activity pending (or to the
knowledge of Seller, threatened) that would be subject to the National Labor
Relations Act (20 U.S.C. §151 et seq.)
or any similar Applicable Law with respect to any Business Employee or the
operations of the Business.


 


(e)           No grievance, arbitration or other
Legal Proceeding exists or is pending or, to the knowledge of Seller,
threatened arising out of or under any collective bargaining or other agreement
of the Business with a trade or national union, works council or other employee
representative group.  There is no Legal
Proceeding pending or, to the knowledge of Seller, threatened relating to any
employment, workplace safety, pay equality or employment discrimination matters
involving any Business Employee.


 


(f)            Within the preceding 90 days,
neither Seller nor any of its Affiliates has effectuated (i) a “plant
closing” (as defined in the WARN Act) affecting any site of employment or
facility of Seller or any of its affiliates where Business Employees are
employed or (ii) a “mass layoff” (as defined in the WARN Act).


 


(g)           Other than as set forth in this Section 3.18
(Labor and Employment Matters), Section 3.05 (Noncontravention),  Section 3.06 (Financial Information;
Undisclosed Liabilities) and Section 3.10 (Litigation), Seller does not
make any representation or warranty with respect to the matters addressed in
this Section 3.18.


 


Section 3.19.  Environmental
Compliance.  (a) Except
as would not reasonably be expected to result in a material Liability of Seller
or any of its Affiliates:


 


(i)            No
written notice, notification, demand, request for information, citation,
summons or order has been received, no complaint has been filed, no outstanding
penalty has been assessed and no Legal Proceeding is pending or, to the
knowledge of Seller, threatened by any Governmental Authority or other Person
with respect to any matters


 


49

















 


relating
to the Purchased Assets, the Business or any Real Property and, in each case,
relating to or arising out of a violation of or Liability under any
Environmental Law or any Environmental Condition.


 


(ii)           No
Hazardous Substance has been Released at, on, under or migrating from any Real
Property, that resulted  in a
condition that requires, at the time of any past or future discovery, under any
Environmental Law as in effect on the Closing Date (or with respect to the
Leased Real Property, under any applicable Real Property Lease as in effect on
the Closing Date) reporting, investigation, assessment, cleanup, remediation or
any other type of response action by Seller or any of its Affiliates.


 


(iii)          None
of any Real Property or any property to which Seller or any of its Affiliates
has, in connection with its occupation of any Real Property or operation of the
Business or the Purchased Assets, transported or arranged for the
transportation or disposal of any Hazardous Substances, is listed or proposed
for listing on the National Priorities List promulgated pursuant to CERCLA, on
CERCLIS (as defined in CERCLA) or on any similar federal, state, local or
foreign list of sites requiring investigation or cleanup.


 


(iv)          With
respect to the Business and the Purchased Assets, each of Seller and its
Affiliates is, and has been for the past 3 years, in compliance with all
Environmental Laws as in existence on or prior to the Closing Date and all
Permits issued pursuant to any such Environmental Law.


 


(v)           To the
knowledge of Seller, (i) there is no asbestos nor any asbestos-containing
materials used in, applied to or in any way incorporated in any building,
structure or other form of improvement on the Owned Real Property or in any
space occupied by the Business at the Leased Real Property which is in a
condition as of the Closing Date that represents a violation of any
then-existing Environmental Law or Real Property Lease and (ii) each of
Seller and its Affiliates (in connection with the Purchased Assets or the
Business) does not sell and has not sold any product containing asbestos or
that utilizes or incorporates asbestos-containing materials in any way.


 


(b)           Seller has delivered or made
available to Buyer copies of all material documents, records and information in
its possession, or the possession of its Affiliates, or of which Buyer or any
of its Affiliates has knowledge and can reasonably obtain, and, in each of the
foregoing cases, concerning Environmental Conditions or material compliance
with or material potential Liability under Environmental Laws with respect to
the Purchased Assets and the Business, including any previously conducted
environmental compliance audits, environmental site assessments, asbestos
surveys and material documents


 


50

















 


regarding
any Release of any Hazardous Substance at, on, under or migrating to or from
the Real Property.


 


(c)           Other than as set forth in this Section 3.19
(Environmental Compliance), Section 3.03 (Government Authorization;
Required Consents), Section 3.05 (Noncontravention), Section 3.06
(Financial Information; Undisclosed Liabilities), Section 3.10
(Litigation) and Section 3.20 (Permits), Seller does not make any
representation or warranty with respect to environmental matters.


 


Section 3.20.  Permits.  (a) Schedule 3.20 sets forth
a true and complete list and description of all material Permits held by Seller
or any of its Affiliates with respect to the Purchased Assets or the conduct of
the Business, including any pending applications for, and any renewals,
extensions or modifications of the Permits. 
These Permits include (i) all 
radiocommunication licenses issued by the FCC, (ii) all equipment
authorizations granted by the FCC with respect to material products, (iii) all
material antenna structure registrations notified to the FCC, (iv) all
radiocommunication licenses issued by Industry Canada, (v) all equipment
authorizations granted by Industry Canada with respect to material products, (vi) all
material export licenses issued under the Export Administration Regulations, (vii) all
registrations and licenses issued under the ITAR, (viii) all facility
security clearances issued by the DSS under the NISPOM and (ix) other
material Permits issued by Government Authorities outside the United States and
Canada, and also include any pending applications for, and any renewals,
extensions or modifications thereof.


 


(b)           To the knowledge of Seller, the FCC
actions granting all Permits issued or granted to Seller or its Affiliates
(including any (i) radiocommunication licenses, (ii) equipment
authorizations and (iii) antenna structure registrations) with respect to
the Purchased Assets or the conduct of the Business, together with all
underlying construction permits, have not been reversed, stayed, enjoined,
annulled or suspended, and there is not pending or threatened any application,
petition, objection or other pleading with the FCC or any other Governmental
Authority that challenges or questions the validity of or any rights of the
holder under any such FCC Permit.


 


(c)           The Permits listed in Schedule 3.20
constitute all of the material Permits required under the Applicable Laws and
necessary to own the Purchased Assets and conduct the Business as currently
conducted.  Each Permit is validly issued
and in full force and effect and is not subject to any conditions other than
those that are imposed by the Applicable Laws. 
Each of Seller and its Affiliates is in compliance with its obligations
under each of the Permits and the Applicable Laws pertaining thereto.  As of the date hereof, none of Seller or its
Affiliates has received notice of any actual or threatened revocation,
modification, restriction, cancellation, suspension, termination, withdrawal,
expiration or non-renewal of any of the Permits or the imposition of a monetary
fine upon Seller or its Affiliates with respect to any Permit.


 


51

















 


Section 3.21.  Customers and
Suppliers.  (a) Schedule
3.21(a) sets forth the names of the top 10 customers of the Business
(based on the dollar amount of sales to such customers) for the fiscal year
ended September 26, 2008 and the fiscal quarter ended December 26,
2008 (the “Material Customers”).  As of the date hereof, other than in the
ordinary course of business no Material Customer has terminated its
relationship with Seller or any Affiliate of Seller with respect to the
Business, and, to the knowledge of Seller, no Material Customer intends to do
so.  As of the date hereof, neither
Seller nor any Affiliate of Seller is involved in any material claim, dispute
or controversy with any Material Customer with respect to the Business.


 


(b)           Schedule 3.21(b) sets forth the
top 10 suppliers of the Business (based on the dollar amount of purchases from
such suppliers) for the fiscal year ended September 26, 2008 and the
fiscal quarter ended December 26, 2008 (the “Material Suppliers”). 
As of the date hereof, no Material Supplier has terminated its
relationship with Seller or any Affiliate of Seller with respect to the
Business, and, to the knowledge of Seller, no Material Supplier intends to do
so.  As of the date hereof, neither
Seller nor any Affiliate of Seller is involved in any material claim, dispute
or controversy with any Material Supplier with respect to the Business.


 


Section 3.22.  Certain
Obligations.  Schedule 3.22
sets forth as of the date hereof a true and complete list (together with the
name of the issuer and amount) of each guarantee made by Seller or its
Affiliates with respect to any Liability of the Business (“Parent Guarantees”), surety bond or similar
instrument outstanding with respect to the Business for which Seller or any of
its Affiliates has any indemnification or reimbursement obligations or has
agreed to provide security under (“Seller
Surety Bonds”) and any letters of credit outstanding with respect to
the Business for which Seller or any of its Affiliates has any reimbursement
obligations ( “Parent LofCs”), in
each case, with respect to the operation of the Business or the ownership or
use of the Purchased Assets.


 


Section 3.23.  Product
Warranty.  Each product
manufactured and sold by the Business prior to the Closing Date and each system
of the Business accepted prior to the Closing Date has been in conformity with
all applicable warranties, subject only to any reserves set forth in the
Financial Statements or included in the calculation of Final Closing Working
Capital.


 


Section 3.24.  Illegal
Payments.  With respect to the
Business, none of Seller and its Affiliates or any of their respective
officers, directors, employees, agents or representatives has made, agreed to
make or offered to make, directly or indirectly, any bribe or kickback, illegal
political contribution, any payment from corporate funds not recorded on the
books and records of Seller or any of its Affiliates or any payment from
corporate funds, directly or indirectly, to or at the direction of any official
of any Governmental Authority or candidate for any political office (other than
lawful payments made to such Person in such Person’s official capacity) for the
purpose of affecting such Person’s action in such


 


52

















 


Person’s
official capacity or the action of the Governmental Authority that such Person
represents or to obtain favorable treatment in securing business or licenses or
to obtain special concessions or to obtain or retain business.  Without limiting the foregoing, the Business
is currently conducted and for the past 18 months has been conducted in compliance,
in all material respects, with (i) the Foreign Corrupt Practices Act and
legislation implementing the Organization for Economic Cooperation and
Development Convention Against Bribery of Foreign Public Officials in
International Business Transactions and (ii) all international anti-bribery
conventions (other than the convention described in clause (i)) and local
anti-corruption and bribery Applicable Laws.


 


Section 3.25.  Affiliates
Transactions.  Other than
services to be provided pursuant to the Transition Services Agreement after the
Closing, the Business does not acquire any materials, products or services from
Seller or its Affiliates necessary for or used in the conduct and operations of
the Business other than materials, products or services that are generally
obtainable, or for which comparable replacement products are generally
obtainable, from a source or supplier other than Seller or an Affiliate of
Seller on commercially reasonable terms within a commercially practicable
timeframe.


 


Section 3.26.  Exclusivity
of Representations.  The
representations and warranties made by Seller in this Article 3 are the
exclusive representations and warranties made by Seller with respect to the
Subsidiary, the Business, the Purchased Assets and the Assumed
Liabilities.  Seller hereby disclaims any
other express or implied representations or warranties with respect to the
Subsidiary, the Business, the Purchased Assets and the Assumed
Liabilities.  It is understood and agreed
that any Due Diligence Materials made available to Buyer or its Affiliates or
their respective Representatives do not, directly or indirectly, and shall not
be deemed to, directly or indirectly, contain representations or warranties of
Seller or any of its Affiliates.


 


ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF BUYER


 


Subject
to Section 13.03, Buyer represents and warrants to Seller as of the date
hereof and as of the Closing Date that:


 


Section 4.01.  Corporate
Existence and Power.  Buyer
and each Affiliate of Buyer designated to purchase or receive any Purchased
Assets as permitted hereunder (each a “Buyer
Designee”) is or will be an entity duly formed, validly existing and
in good standing under the laws of its jurisdiction of formation and has all
corporate powers and all material Permits required to own, lease and operate
and to carry on its business as now conducted.


 


Section 4.02.  Corporate
Authorization; Binding Effect.  (a) 
Buyer and each Buyer Designee, as the case may be, has or will have full
corporate (or other


 


53

















 


limited
company) power and authority to execute and deliver this Agreement and/or each
other Transaction Document to which it is a party, to perform its obligations
hereunder and thereunder, as applicable, and to consummate the transactions
contemplated hereby and thereby.  The
execution and delivery by Buyer and each Buyer Designee, as the case may be, of
the Transaction Documents to which it is a party and each other document,
agreement or instrument to be executed and delivered by Buyer or such Buyer Designee,
as the case may be, pursuant to the Transaction Documents, and the performance
by Buyer and such Buyer Designee, as the case may be, of its obligations
hereunder and thereunder, have been duly authorized by all necessary corporate
action on the part of Buyer and such Buyer Designee, as applicable.


 


(b)           This Agreement has been, and each
other Transaction Document to which Buyer or any Buyer Designee is a party will
be, duly and validly executed and delivered by Buyer and/or the applicable
Buyer Designee, as the case may be, and this Agreement is, and, when executed
and delivered by Buyer or an applicable Buyer Designee, as the case may be,
each of the other Transaction Documents to which Buyer or such Buyer Designee
is a party will constitute, assuming due execution and delivery by the other
parties to such Transaction Document, a valid and binding obligation of Buyer
and/or the applicable Buyer Designee, as the case may be,  enforceable against Buyer and/or the applicable
Buyer Designee, as the case may be, in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws affecting creditors’ rights
generally or by general principles of equity (regardless of whether enforcement
is sought in equity or at law).


 


Section 4.03.  Government
Authorization.  The execution,
delivery and performance by Buyer or any Buyer Designee, as the case may be, of
this Agreement and the other Transaction Documents to which it is a party and
each other document, agreement or instrument to be executed and delivered by
Buyer or any Buyer Designee, as the case may be, pursuant to this Agreement and
the other Transaction Documents, and the consummation of the transactions
contemplated hereby and thereby, require no material action, consent, approval,
waiver or exemption by or of, or any filing with, or notification to, any
Governmental Authority other than any applicable requirements of (a) the
HSR Act and other applicable Antitrust Laws set forth on Schedule 4.03(a), (b) the
FCC under the Communications Act, (c) Industry Canada under the
Radiocommunication Act, (d) the DDTC under the ITAR, (e) the BIS
under the Export Administration Regulations, (f) FAR Subpart 42.12 with
respect to the novation of the prime Government Contracts and (g) the DSS
under the NISPOM.


 


Section 4.04. 
Noncontravention.  The
execution, delivery and performance by Buyer and the Buyer Designees, as the
case may be, of this Agreement and the other Transaction Documents to which it
is a party, and the consummation of the transactions contemplated hereby and
thereby, do not and will not (i) violate the certificate of incorporation
or bylaws of Buyer or


 


54

















 


equivalent
documents of such Buyer Designee or (ii) assuming compliance with the
matters referred to in Section 4.03, violate any Applicable Law.


 


Section 4.05. 
Financing.  Buyer has
sufficient cash, available lines of credit or other sources of immediately
available funds to enable it to make payment of the Purchase Price and any
other amounts to be paid by it hereunder.


 


Section 4.06.  Investigation
by Buyer; Seller’s Liability.  Buyer
has conducted its own independent investigation, review and analysis of the operations,
assets, liabilities, results of operations and financial condition of the
Business and the Purchased Assets, which investigation, review and analysis was
conducted by Buyer and, to the extent Buyer deemed appropriate, by its
Affiliates and its Representatives. 
Buyer has selected and been represented by, and/or consulted with, such
expert advisors as it has deemed appropriate in connection with the negotiation
of this Agreement and its determination to enter into and consummate the
transactions contemplated hereby.  Buyer
acknowledges that it, its Affiliates and its Representatives have been provided
access to the personnel, properties, premises and records of the Business and
the Purchased Assets for such purpose. 
Subject to Section 11.10, in entering into this Agreement, Buyer
acknowledges that it has relied solely upon the aforementioned investigation,
review and analysis and not on any factual representations or opinions of
Seller or any of Seller’s or its Affiliates’ representatives (except the
specific representations and warranties of Seller set forth in Article 3).  Buyer acknowledges that the representations
and warranties made by Seller in Article 3 are the exclusive
representations and warranties made by Seller with respect to the Subsidiary,
the Business, the Purchased Assets and the Assumed Liabilities, and that Seller
makes no other express or implied representations or warranties with respect to
the Subsidiary, the Business, the Purchased Assets or the Assumed Liabilities.  It is understood and agreed that any Due
Diligence Materials made available to Buyer or its Affiliates or their
respective Representatives do not, directly or indirectly, and shall not be
deemed to, directly or indirectly, contain representations or warranties of Seller
or any of its Affiliates.


 


Section 4.07. 
Litigation.  As of the
date hereof, there is no Legal Proceeding pending against, or to the knowledge
of Buyer threatened against or affecting, Buyer before any arbitrator or
Governmental Authority which in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the transactions contemplated by this
Agreement or challenges the validity or enforceability of this Agreement.


 


Section 4.08.  Finders’
Fees.  Except for Morgan
Stanley & Co. Incorporated, whose fees and expenses will be paid by
Buyer, there is no investment banker, broker, finder or other intermediary
which has been retained by or is authorized to act on behalf of Buyer or any of
its Affiliates who might be entitled to any fee or commission in connection
with the transactions contemplated by this Agreement.


 


55

















 


Section 4.09.  Taxes.  Each Buyer Affiliate that is acquiring any
Purchased Asset located in Canada is or prior to the Closing Date will be
registered under Part IX of the Excise Tax Act (Canada) and under Chapter
VIII of an Act respecting the Quebec sales tax with registration numbers to be
provided to Seller prior to the Closing Date.


 


ARTICLE 5

COVENANTS OF SELLER


 


Section 5.01.  Conduct of
the Business.  (a)  From
the date hereof until the Closing Date, except as expressly contemplated by
this Agreement, Seller shall and shall cause its Affiliates to conduct the
Business only in the ordinary course consistent with past practice in all
material respects and, to the extent it is consistent with good business
practice to do so, use commercially reasonable efforts to (i) preserve
intact the present business operations and organization of the Business, (ii) keep
available the services of the directors, officers and employees of the
Business, (iii) preserve and maintain present relationships with
suppliers, customers, landlords and other Persons that have continuing dealings
with the Business, (iv) maintain and keep the material properties and
assets of, or used by, the Business in good repair and condition, (v) maintain
the books, accounts and records of the Business in the ordinary course of
business consistent with past practice except as required by concurrent changes
in GAAP or as agreed to or recommended by Seller’s independent public
accountants, (vi) keep in full force and effect insurance presently
maintained by Seller and its Affiliates 
(or insurance comparable in amounts and scope of coverage) with respect
to the Business or the Purchased Assets, except in the event that any change to
such insurance is applicable to all Seller Affiliates covered by such insurance
and (vii) continue to collect accounts receivable and pay accounts payable
utilizing normal procedures.


 


(b)           Without limiting the generality of Section 5.01(a),
except as expressly contemplated by this Agreement, Seller shall not, and shall
not permit any of its Affiliates, without the prior written consent of Buyer
(which consent shall not be unreasonably withheld or delayed) to:


 


(i)            incur
any capital expenditures or any obligations or liabilities with respect to
capital expenditures with respect to the Business, except (A) in the
ordinary course of business consistent with past practice and (B) for any
unbudgeted capital expenditures not to exceed $250,000 individually or
$2,000,000 in the aggregate;


 


(ii)           sell,
lease or otherwise transfer, or create or incur any Lien on, any Purchased
Assets, other than in the ordinary course of business consistent with past
practice;


 


56

















 


(iii)          make
any loans, advances or capital contributions to, or investments in, any other
Person with respect to the Business, other than to employees in the ordinary
course of business consistent with past practice;


 


(iv)          (A) enter
into a Contract that if entered into prior to the date of this Agreement would
be required to be set forth on Schedule 3.08(a) (other than Contracts of
the type described in Section 3.08(a)(ii) - (iv) entered into in
the ordinary course of business consistent with past practices and involving
aggregate payments or receipts over the term of such Contract of not greater
than $15,000,000 and other than Contracts of the type described in Section 3.08(a)(ix) and
Sections 3.08(a)(xi) - (xiv)) or (B) modify, terminate, amend or extend
any Contract entered into prior to the date of this Agreement required to be
set forth on Schedule 3.08(a) other than “change orders” entered into in
the ordinary course of business consistent with past practice;


 


(v)           other
than as required by Applicable Law or pursuant to the terms of any Benefit Plan
as in effect on the date hereof (or as modified to cause it to comply with
Applicable Law), (A) other than in the ordinary course of business
consistent with past practice, increase or enhance the compensation or benefits
of the Business Employees, (B)  grant or enhance any retention, severance,
termination or other similar pay of any Business Employee, (C) make an
offer of employment to any person with an annual base salary in excess of
$125,000 or (D) other than the entry into an employment agreement with a
Business Employee or an amendment to an existing employment agreement with a
Business Employee (in each case in the ordinary course of business consistent
with past practice), (X) amend any Assumed Plan or (Y) adopt or
materially amend the terms of any Benefit Plan, other than an Assumed Plan,
that primarily benefits Business Employees;


 


(vi)          acquire
or agree to acquire by merging or consolidating with, or by purchasing any
equity interest in or portion of the assets of, or by any other manner, any
business or any corporation, partnership, joint venture, association or other
business organization or division thereof;


 


(vii)         change
the methods of accounting or accounting practice by Seller with respect to the
Business, except as required by concurrent changes in GAAP as agreed to by its
independent public accountants;


 


(viii)        settle,
or offer or propose to settle, any material Legal Proceedings against the Business
(other than Legal Proceedings constituting Excluded Liabilities);


 


(ix)           increase
the stated amount of any Parent Guarantee, Seller Surety Bond or Parent LofC
outstanding on the date hereof in excess of 25% of its stated amount;


 


57














 


(x)            make
any material change in the general pricing practices, procedures or policies of
the Business, except in the ordinary course of business;


 


(xi)           license
out or otherwise permit any Person to use any Owned Intellectual Property
Rights or Transferred Patents other than non-exclusive licenses granted in the
ordinary course of business consistent with past practice; or


 


(xii)          agree,
resolve or commit to do any of the foregoing.


 


(c)           Notwithstanding anything contained in
this Agreement to the contrary, Seller shall be permitted to (i) maintain
through the Closing Date the cash management system of the Business and the
cash management procedures currently conducted by Seller with respect to the
Business and (ii) withdraw from the Business all cash and cash equivalents
on hand and in banks prior to the Closing (it being understood that nothing in
this Agreement shall require Seller to ensure or otherwise convey to Buyer any
Closing Cash in excess of the Closing Cash Amount).


 


Section 5.02.  Exclusive
Dealings.  (a)  During
the period from the date of this Agreement until the earlier of (i) the
date this Agreement is terminated in accordance with its terms or (ii) the
Closing Date, Seller shall not and shall cause its Affiliates not to take any
action to, directly or indirectly, knowingly encourage, initiate, solicit,
propose or engage in negotiations with, enter into any agreement, arrangement
or understanding with, or provide, furnish or otherwise disclose any non-public
or confidential information to, or otherwise knowingly solicit, induce or
participate in any discussions, negotiations, dealings or transactions with,
any Person(s), other than Buyer (and Buyer’s Affiliates and Representatives),
concerning any inquiry, proposal, offer, arrangement, or agreement (each,
whether in writing or otherwise) relating to any direct or indirect sale of or
transfer of control of all or any portion of the Business or Purchased Assets,
whether by stock transfer, merger, recapitalization, restructuring or otherwise
(any such transaction, a “Sale Transaction”),
other than as expressly permitted pursuant to the terms of this Agreement.


 


(b)           Promptly following the execution of
this Agreement, Seller shall, and shall cause each of its Affiliates to,
terminate or cause to be terminated any and all existing activities,
discussions and negotiations with any Person(s) conducted prior to the
date hereof (other than Buyer and Buyer’s Affiliates and Representatives),
concerning any inquiry, proposal, offer, arrangement, or agreement (each,
whether in writing or otherwise) relating to any Sale Transaction.


 


Section 5.03.  Access to
Information.  (a)  From
the date hereof until the Closing Date, Seller will (i) give Buyer and its
Representative reasonable and supervised access to the offices, properties and
books and records of Seller and its Affiliates relating to the Business and the
Business Employees, (ii) furnish to


 


58

















 


Buyer
and its Representatives such financial and operating data and other information
relating to the Business as such Persons may reasonably request and (iii) instruct
the Representatives of Seller and its Affiliates (including the Business
Employees) to cooperate with Buyer and its Representatives in Buyer’s investigation
of the Business and with respect to any requests for information made by Buyer
pursuant to this Section 5.03; provided
that Buyer shall not be permitted to perform any invasive onsite environmental
sampling with respect to any property of Seller or any of its Affiliates.  Any investigation pursuant to this Section shall
be conducted in such a manner as not to interfere unreasonably with the conduct
of the business of Seller and its Affiliates. 
Notwithstanding the foregoing, Buyer shall not have access to personnel
records of Seller and its Affiliates relating to individual performance or
evaluation records, medical histories or other information, the disclosure of
which would be prohibited by Applicable Law or would reasonably be expected to
subject Seller or its Affiliates to risk of liability.


 


(b)           After the Closing Date, Seller will
afford promptly to Buyer and its agents reasonable access to its books of
account, financial and other records (including accountant’s work papers upon
execution of a customary access letter if required by Seller’s outside
accountants), information, employees and auditors to the extent necessary or
useful for Buyer in connection with any audit, investigation, dispute or
litigation or any other reasonable business purpose relating to the Business or
to comply with its obligations under this Agreement or the other Transaction
Documents or any requirements of Applicable Laws with respect to the
transactions contemplated by this Agreement and the other Transaction
Documents; provided that any such
access by Buyer shall not unreasonably interfere with the conduct of the
business of Seller and its Affiliates. 
Buyer shall bear all of the out-of-pocket costs and expenses (including
attorneys’ fees, but excluding reimbursement for general overhead, salaries and
employee benefits) reasonably incurred in connection with the foregoing.


 


Section 5.04.  Competitive
Activity; Confidentiality.  (a) 
Seller agrees that for a period of three years after the Closing Date (the “Noncompetition Period”), except as
otherwise set forth in this Section 5.04, neither Seller, Seller Parent
nor any of their respective Affiliates (for the avoidance of doubt, the term
Affiliates as used in this Section 5.04 excludes Representatives)
(collectively, the “Covered Persons”)
shall engage in or own, manage or have any direct or indirect interest or any
investment in any Person that is engaged in any business that competes with the
Business as conducted or expected to be conducted as of the Closing Date (the “Restricted Business”).  In furtherance of the foregoing, Seller
agrees that during the Noncompetition Period, no Covered Person will use the
Targeted Technology.


 


(b)           Notwithstanding the foregoing,
nothing herein shall prohibit any Covered Person from disposing of any Excluded
Asset described in Item 1 of Schedule 2.02(p), or from engaging in any business
that competes with the Business:


 


59

















 


(i)            through
the direct or indirect ownership of securities or other ownership interests of
any Person that are registered under the Securities Act, so long as such
securities or ownership interests constitute 10% or less of the outstanding
voting power of that Person;


 


(ii)           through
the acquisition of an interest in any Person (whether by merger, stock
purchase, investment or otherwise) or through the acquisition of all or
substantially all of the assets of any Person (each, an “Acquisition Transaction”), in each case
after the date hereof, which Person immediately prior to the time of such
Acquisition Transaction derives 5% or less of its annual revenue from the
Restricted Business; and


 


(iii)          through
an Acquisition Transaction, after the date hereof, of any Person that
immediately prior to the time of such Acquisition Transaction derives more than
5% but less than 40% of its annual revenue from the Restricted Business; provided that such Person divests (or,
pending regulatory or governmental approval, agrees to divest) its interest in
the Restricted Business within 18 months of such Acquisition Transaction.


 


In
addition, notwithstanding the foregoing or anything else herein to the
contrary, this Section 5.04 shall not (i) in any manner prevent any
Covered Person from conducting any of the businesses (other than the Business)
of such Covered Person conducted as of the date hereof, (ii) be applicable
to any Person or any of its Affiliates that acquires an interest in any Covered
Person through any Acquisition Transaction (provided that this Section 5.04 shall
continue to be applicable to such Covered Person following such Acquisition
Transaction) or (iii) be applicable to any Person as of and following such
time that such Person ceases to be a Covered Person.


 


(c)           If any Governmental Authority
determines that any of the covenants contained in this Section 5.04, or
any part thereof, is invalid or unenforceable, the remainder of such covenants
shall, to the extent enforceable under Applicable Law, not thereby be affected
and shall be given full effect, without regard to the portions that have been
declared invalid or unenforceable.  If
any Governmental Authority determines that any of the covenants contained in
this Section 5.04, or any part thereof, is unenforceable because of the duration or
geographic scope of such provision, it is the intention of the parties that
such Governmental Authority shall have the power to modify any such provision,
to the extent necessary to render the provision enforceable, and such provision
as so modified shall be enforced.


 


(d)           Seller hereby acknowledges that the
covenants in this Section 5.04 are adequately supported by consideration
from Buyer given pursuant to this Agreement and other Transaction
Documents.  Seller hereby acknowledges
and agrees monetary damages for breach of its obligations under this Section 5.04
would be inadequate; therefore, in addition to any other rights or remedies
that


 


60

















 


Buyer
may have at law or in equity, Buyer will be entitled to temporary and permanent
injunctive relief in any Legal Proceeding which may be brought to enforce any
provision contained in this Section 5.04.


 


(e)           From and after the Closing Date,
Seller shall (and shall cause its Affiliates to) keep in strict confidence, and
will not, directly or indirectly, at any time, disclose, divulge or make
available to any Person, or use for commercial purposes, any (i) Business
Confidential Information, including any Business Confidential Information
provided to Seller and its Representatives pursuant to Section 6.02, or (ii) any
other confidential or proprietary information of Buyer or its Affiliates
furnished to Seller or its Affiliates in connection with the transactions
contemplated by this Agreement, in each case, without the prior written consent
of Buyer unless compelled to disclose such information by judicial or
administrative process or by other requirements of Applicable Law or except to
the extent such documents or information can be shown to have been (x) in
the public domain through no fault of Seller or any of its Affiliates or (y) later
lawfully acquired by Seller or any of its Affiliates from sources other than
those related to its prior ownership of the Business.  In the event that Seller or any of its
Affiliates is compelled to disclose any Business Confidential Information or
other confidential or proprietary information of Buyer or its Affiliates, as
the case may be, by judicial or administrative process or by other requirements
of Applicable Law, to the extent reasonably practicable and subject to Applicable
Law, Seller shall promptly notify Buyer of such event and reasonably cooperate
with Buyer in commercially reasonable efforts to quash such judicial or
administrative process or otherwise protect the confidentiality of the Business
Confidential Information and other confidential or proprietary information of
Buyer or its Affiliates.


 


Section 5.05.  Title
Insurance; Memorandum of Lease, Estoppel Certificates.  Prior to the Closing Date, Seller
shall reasonably cooperate with Buyer in connection with Buyer’s efforts to
obtain, at Buyer’s sole expense, title insurance policies, or binding
commitments to issue the same, with respect to the Owned Real Property
designated by Buyer from a title insurance company selected by Buyer in its
sole discretion, and Seller shall execute and deliver to such title insurance
company such documents, certificates, agreements and other writings, including
customary owner’s affidavits of title, in customary form as may be reasonably
requested by Buyer in connection with the delivery to Buyer of the title
insurance policies which Buyer may seek to obtain.  Prior to the Closing Date, Seller shall use
its reasonable efforts to deliver to Buyer memoranda of lease in a form
reasonably satisfactory to Buyer or its lenders for the Real Property Leases
designated by Buyer.  In addition, for
the Real Property Leases designated by Buyer for which landlord’s consent is
being obtained pursuant to Section 2.05, Seller shall request and shall
use commercially reasonable efforts (but without any obligation to expend
money, commence litigation or offer or grant any financial or other
accommodation to any third party) to obtain an estoppel certificate from the
landlord of such Real Property Lease in a form reasonably acceptable to Buyer.


 


61

















 


Section 5.06.  Insurance
Proceeds.  Except as set forth
in this Section 5.06, coverage of the Purchased Assets under any insurance
policy of Seller or its Affiliates shall cease as of the Closing Date for any
incident or event to the extent occurring after the Closing.  Seller shall and shall cause its Affiliates
to use commercially reasonable efforts (including using reasonable efforts to
cause Buyer and its designated Affiliates, as the case may be, to be listed as
“Additional Insureds”)  to ensure that the Purchased Assets shall, to
the extent covered as of the Closing Date, continue to have coverage from and
after the Closing Date under each insurance policy in effect with respect to
the Purchased Assets as of the Closing (each, a “Specified Policy”) in accordance with the terms and conditions
of the Specified Policies for any loss, liability or damage suffered with
respect to any incident or event to the extent occurring prior to the Closing
Date.  In the case of any Specified
Policy that is a “claims made basis” policy, from the Closing Date until the
policy expiration date (including any renewal thereof) of such policy, and in
the case of any Specified Policy that is an “occurrence basis” policy, after
the Closing Date, Seller shall, and shall cause its Affiliates to, use their
commercially reasonable efforts to assert claims for any loss, liability or
damage suffered with respect to any Purchased Assets after the Closing with
respect to any incident or event to the extent occurring, existing or arising
prior to the Closing, but only to the extent such loss, liability or damage is
covered by the terms of such Specified Policy; provided
that Seller shall not be required to pay any amount to Buyer pursuant to this Section 5.06
unless and until it has received payment associated with claims under such
Specified Policies (net of any applicable deductibles or other out-of-pocket
costs and expenses directly related to such claims).  Buyer and Seller shall cooperate in connection
with making such claim and shall provide the other with all reasonably
requested information necessary to make such claim.  Nothing contained in this Section 5.06
shall require Buyer or its Affiliates to pursue their rights under this Section 5.06
in lieu of their rights under any other provision of this Agreement and nothing
contained in this Section 5.06 shall affect the rights of Buyer and its
Affiliates under any other provision of this Agreement, except that any amounts
received by Buyer or any of its Affiliates for a loss under this Section 5.06
may offset recovery for the same loss under Article 11 to the
extent of the amount paid and received by Buyer.


 


Section 5.07.  Release of
Liens.  Seller shall or shall
cause its Affiliates to take all commercially reasonable actions necessary to
have all Liens (other than Permitted Liens) in respect of the Purchased Assets
released effective as of the Closing Date and, to the extent in spite of using
commercially reasonable efforts, such Liens are not released effective as of
the Closing Date, Seller shall or shall cause its Affiliates to take all
actions necessary to have all Liens (other than Permitted Liens) in respect of
the Purchased Assets released.  Nothing contained
in this Section 5.07 shall relieve Seller of its obligations under any
other provision of this Agreement, including Article 11.


 


Section 5.08.  Transferred
New York Tower Sites.  Seller
shall cause Shaw Environmental, Inc. or another reasonably comparable
environmental consultant


 


62

















 


to
complete a non-intrusive assessment of active and inactive above-ground and
underground storage tanks at the Transferred New York Tower Sites, including an
evaluation of each tank’s location, construction material, volume, contents,
installation date, date taken out of service, indications of release and status
of compliance with applicable Environmental Laws, and shall provide Buyer with
a copy of any draft report describing the results of such assessment, provide
Buyer reasonable opportunity to provide comments and provide Buyer with a copy
of any final report.


 


Section 5.09.  Sales of
SONY Excluded Assets. Seller agrees that for a period of two years
after the Closing Date, neither Seller nor any of its Affiliates shall sell any
asset that is an Excluded Asset retained by Seller in connection with the SONY
Contract to a Person primarily engaged in any business that directly competes
with the Business unless (A) prior to such sale Buyer shall have been given
a period of not less than 10 Business Days in which to make an offer for such
assets and (B) the sale to such competitor is consummated within 90
Business Days after the expiration of such 10 Business Day period referred to
in clause (A) at a price at least as favorable to Seller or such Seller
Affiliate as the terms offered by Buyer.


 


ARTICLE 6

COVENANTS OF BUYER


 


Section 6.01. 
Confidentiality.  Buyer
and its Affiliates will hold, and will use commercially reasonable efforts to
cause their respective officers, directors, employees, accountants, counsel,
consultants, advisors and agents to hold in confidence (A) at all times
prior to the Closing Date and after any termination of this Agreement, all
confidential documents and information concerning the Business furnished to
Buyer or its Affiliates in connection with the transactions contemplated by
this Agreement, and (B) at all times prior to, from and after the Closing
Date and after any termination of this Agreement, all confidential documents
and information concerning Seller and its Affiliates that is not Business
Confidential Information furnished to Buyer or its Affiliates in connection
with the transactions contemplated by this Agreement, in each of case (A) and
(B) unless compelled to disclose by Applicable Law or except to the extent
that such information can be shown to have been (i) previously known on a
nonconfidential basis by Buyer or any of its Affiliates, (ii) in the
public domain through no fault of Buyer or any of its Affiliates or (iii) later
lawfully acquired by Buyer or any of its Affiliates from sources other than
Seller and its Affiliates; provided that
Buyer may disclose such information to its officers, directors, employees,
accountants, counsel, consultants, advisors and agents in connection with the
transactions contemplated by this Agreement so long as such Persons are
informed by Buyer of the confidential nature of such information and are
directed by Buyer to treat such information confidentially.  The obligation of Buyer and its Affiliates to
hold any such information in confidence shall be satisfied if they exercise the
same care with respect to such information as they would take to


 


63

















 


preserve
the confidentiality of their own similar information.  If this Agreement is terminated, Buyer and
its Affiliates will, and will use their commercially reasonable efforts to
cause their respective officers, directors, employees, accountants, counsel, consultants,
advisors and agents to, destroy or deliver to Seller, upon request, all
documents and other materials, and all copies thereof, obtained by Buyer or its
Affiliates or on their behalf from Seller or any of its Affiliates in
connection with this Agreement that are subject to such confidence.


 


Section 6.02.  Access.  (a) To the extent permissible
under Applicable Law and subject to Section 5.04, on or after the Closing
Date, upon written request, Buyer will afford Seller and its agents reasonable
and supervised access to the books, records, employees and auditors of the
Business existing prior to the Closing (and for the avoidance of doubt,
excluding any other books, records, employees and auditors of the Buyer) that
are in possession or reasonable control of Buyer or its Affiliates (i) to
the extent reasonably necessary to permit Seller or any of its Affiliates to
comply with their financial reporting, accounting or auditing obligations
(other than with respect to Taxes which are covered in Sections 8.08 and 8.09)
with respect to any period ending on or before the Closing Date with respect to
the Business and (ii) to the extent reasonably requested by Seller or any
of its Affiliates in connection with the defense of any Third Party Claim
resulting from the conduct of the Business or the ownership of the Purchased
Assets prior to the Closing for which Seller or such Affiliate has retained
liability under this Agreement; provided
that (x) any such access by Seller or such Affiliate shall not
unreasonably interfere with the conduct of the business of Buyer or any of its
Affiliates; (y) Seller and its Affiliates shall not use the provisions of
this Section 6.02(a) with the intent of obtaining any information for
use in any Legal Proceeding that may arise between Buyer and Seller in
connection with this Agreement; and (z) Seller shall bear all of the
out-of-pocket costs and expenses (including attorneys’ fees, but excluding
reimbursement for general overhead, salaries and employee benefits) reasonably
incurred in connection with this Section 6.02(a).


 


(b)           To the extent permitted by Applicable
Law and only to the extent required to be provided by Seller or its Affiliates
pursuant to (and subject to the limitations and conditions set forth in) Section 5.5.1
of the Com-Net Agreement or Section 5.02(d) of the Autoliv Agreement,
Buyer will, from and after the Closing and until the expiration of Seller’s or
its Affiliates’ obligations under Section 5.5.1 of the Com-Net Agreement
or Section 5.02(d) of the Autoliv Agreement, afford reasonable access
during normal business hours upon advance written notice to the books and
records of the Business existing prior to the Closing (and for avoidance of
doubt, excluding any other books or records of Buyer or its Affiliates) to any
Person who is (and only to the extent that such Person is) entitled to such
access under Section 5.5.1 of the Com-Net Agreement or Section 5.02(d) of
the Autoliv Agreement; provided
that (i) Buyer has no obligation to provide access to any Person to the
extent that such access would unreasonably interfere with the conduct of the
Business by Buyer; (ii) Buyer has no obligation to provide such access to
any Person that is adverse to Buyer or any


 


64

















 


of its
Affiliates (as determined by Buyer in good faith) in any Legal Proceeding; (iii) Seller
shall bear all of the out-of-pocket costs and expenses (including attorneys’
fees, but excluding reimbursement for general overhead, salaries and employee
benefits) reasonably incurred by Buyer in connection with providing such
access; and (iv) Seller and its Affiliates shall reasonably cooperate with
Buyer to protect the confidentiality of any confidential information of the
Business provided to any Person pursuant to this Section 6.02(b),
including by taking commercially reasonable actions to enforce any
confidentiality obligations of such Person in favor of Seller or its Affiliates
and causing such Person to execute a confidentiality or non-disclosure
agreement in favor of Buyer in a form reasonably acceptable to Buyer.


 


Section 6.03.  Cooperation
on SONY Litigation.  In
furtherance of its obligations under Section 6.02 and notwithstanding any
limitations set forth therein, from and after the Closing Date, Buyer will
provide and, as applicable, cause its employees and its Affiliates and their
employees to provide, all such reasonable cooperation to Seller, its Affiliates
and their respective Representatives with respect to the SONY Litigation, which
cooperation will include furnishing or causing to be furnished  records, information and testimony as
requested by Seller, its Affiliates or their respective Representatives and
causing Transferred Employees who possess knowledge pertaining to the SONY
Litigation to make themselves available for consultation with respect to
settlement discussions and to attend strategy sessions and judicial and
arbitration proceedings, as requested by Seller, its Affiliates or their
respective Representatives in connection therewith.  In connection with the defense or prosecution
by Seller, its Affiliates or their respective Representatives of any lawsuit
arising from the SONY Litigation, Buyer’s obligations under this Section 6.03
will include:  (i) causing the
Transferred Employees with the knowledge pertaining to the SONY Litigation to
provide such information, recollections and explanations of events or documents
as reasonably may be relevant or helpful in connection with any discussions,
negotiations or litigation pertaining to the SONY Litigation; (ii) causing
the Transferred Employees with the knowledge pertaining to the SONY Litigation
to comply with requests for depositions and for testimony at trial and to make
themselves available for deposition and trial testimony preparation by Seller’s
counsel for such time periods as are reasonably appropriate; (iii) causing
the individual who, prior to the Closing, acted as Vice President and General
Manager of M/A-COM (John Vaughan), or another reasonably acceptable corporate
designee of similar rank and responsibility, and other reasonably acceptable
relevant Transferred Employees to assist with answering and to verify
interrogatory responses; (iv) causing the individual who, prior to the
Closing, acted as Vice President and General Manager of M/A-COM, or another
reasonably acceptable corporate designee of similar rank and responsibility, to
participate in weekly litigation strategy sessions for a maximum of 5 hours per
session, to the extent such frequency and duration for such strategy sessions
are reasonably appropriate, unless otherwise agreed to by Buyer; and (v) causing
the individual who, prior to the Closing, acted as Vice President and General
Manager of M/A-COM, or another reasonably acceptable corporate designee of


 


65

















 


similar
rank and responsibility, to be available to attend each day of any trial or
arbitration proceeding; provided,
that notwithstanding anything to the contrary in this Section 6.03, Buyer
will only be obligated to cause any person to cooperate with Seller in the SONY
Litigation pursuant to this Section 6.03 if and for so long as Buyer is
capable of directing the actions of such person.  Seller shall bear any and all out-of-pocket
costs and expenses incurred by Buyer, its Affiliates or their respective
employees or Representatives as a result of complying with this Section 6.03.  With respect to the SONY Litigation, Seller
agrees to act in a commercially reasonable manner and not to take any action
with the intent of harming the reputation of the Business, Buyer or any of its
Affiliates.  Seller and its Affiliates
hereby agree to use commercially reasonable efforts to conduct the SONY
Litigation in such a manner, without compromising Seller’s position, to
minimize disruption to the Business, including by providing, to the extent it
is reasonably practicable, reasonable advance notice to Buyer and its
Affiliates of the need to use the Transferred Employees as provided for in this
Section 6.03, and scheduling events, to the extent it is reasonably
practicable, to accommodate the schedules and reasonable requests of the
Transferred Employees and Buyer and its Affiliates.  The parties hereto hereby agree and
acknowledge that, notwithstanding anything to the contrary herein, the SONY
Litigation shall be an Excluded Liability retained by Seller pursuant to this
Agreement, and that nothing in this Section shall in any way affect the
treatment of the SONY Litigation under this Agreement as an Excluded Liability.


 


Section 6.04.  Post-Closing
Obligations for Leases.  Buyer
shall not, without the prior written consent of Seller, exercise any right with
regard to, or enter into, any amendment, renewal, modification or waiver of any
Real Property Lease that extends the term thereof beyond its then-current term
with respect to any Real Property Lease as to which Seller or one of its
Affiliates remains the leasing party or a guarantor, or is otherwise
secondarily liable for the obligations of the lessee, under such lease.  Notwithstanding the foregoing, with respect
to any Real Property Lease that involves a month-to-month tenancy and with
respect to which Seller or one of its Affiliates remains the leasing party or a
guarantor or is otherwise secondarily liable, Buyer may extend such Real
Property Lease (or otherwise continue or renew such month-to-month tenancy) so
long as it is not later than the date that is 24 months after the Closing
Date.  Nothing in this Agreement shall be
deemed to prevent Buyer from seeking a novation of, or entering into a new
lease for the real property relating to, any Real Property Lease as to which
Seller remains the leasing party or a guarantor, or is otherwise secondarily
liable for the obligations of the lessee under such lease, so long as such
novation or new lease contains a full release of all obligations of Seller
and/or its Affiliate, as the case may be, under such Real Property Lease with
respect to periods after such novation or new lease.


 


Section 6.05.  Replacement
of Certain Obligations.  (a) 
Prior to the Closing Date, Buyer and Seller shall use their commercially
reasonable efforts to, effective as of the Closing Date, (i) cause to be
terminated each of the Parent Guarantees, (ii) replace the Seller Surety
Bonds, and (iii) replace the Parent LofCs


 


66

















 


and
terminate any reimbursement obligations or other Contracts between and among
Seller and its Affiliates (other than the Subsidiary), on the one hand, and the
beneficiary of any such Parent Guarantee or the provider of any such Seller
Surety Bond or any such Parent LofC, on the other hand, in each case that
relates to any such Parent Guarantee, Seller Surety Bond or Parent LofC (each,
a “Related Obligation or Contract”).  Notwithstanding anything to the contrary
herein, for purposes of this Section 6.05, commercially reasonable efforts
will not require Buyer or Seller to institute escrow arrangements or make any
cash payments (other than to incur ordinary and reasonable costs and expenses
to have issued new surety bonds and letters of credit to replace the Seller
Surety Bonds and Parent LofCs) to any beneficiary to terminate or replace any
such Parent Guarantees, Seller Surety Bonds or Parent LofCs.


 


(b)           To the extent that any Parent
Guarantee, Seller Surety Bond, Parent LofC or Related Obligation or Contract
remains outstanding as of the Closing, Buyer and Seller shall have a continuing
obligation after the Closing to use their commercially reasonable efforts to
have any such Parent Guarantee, Seller Surety Bond, Parent LofC or Related
Obligation or Contract terminated or replaced after the Closing as contemplated
by Section 6.05(a).  To the extent
that Seller or any of its Affiliates has performance obligations under any such
Parent Guarantee, Seller Surety Bond, Parent LofC or Related Obligation or Contract,
Buyer and its Affiliates shall use their reasonable best efforts to perform
such obligations on behalf of such party or otherwise take such action as
reasonably requested by Seller so as to put such party in the same position as
if Buyer (or its Affiliates), and not such party, had performed or were
performing such obligations.  Neither
Seller nor any of its Affiliates shall have any obligation to extend the term,
or otherwise agree to any amendment or waiver, of any Parent Guarantee, Seller
Surety Bond, Parent LofC or any Related Obligation or Contract that remains
outstanding after the Closing other than “change orders” entered into in the
ordinary course of business consistent with past practice with a value of less
than 25% of the original value of the relevant Parent Guarantee, Seller Surety
Bond, Parent LofC or Related Obligation or Contract.


 


(c)           If the termination or replacement of
a particular Parent Guarantee, Seller Surety Bond, Parent LofC or Related
Obligation or Contract would in and of itself (with or without notice or lapse
of time) violate, conflict with, result in a breach or default of, or otherwise
give any Person additional rights or compensation under, or the right to
terminate or accelerate, any Contract of the Business, such Parent Guarantee,
Seller Surety Bond, Parent LofC or Related Obligation or Contract shall not be
required to be terminated or replaced pursuant to this Section 6.05.  Nothing in this Section 6.05(c) shall
excuse either Buyer or Seller from any of its other obligations under this Section 6.05.


 


(d)           Nothing in Section 6.05(b) affects
Buyer’s right to seek indemnification under Section 11.02.


 


67














 


Section 6.06.  Targeted
Technology Obligation.  Buyer
agrees to comply with its obligations set forth on Schedule 6.06 at the times,
in the manner and subject to the terms and conditions set forth in such
Schedule.


 


ARTICLE 7

COVENANTS OF BUYER AND SELLER


 


Section 7.01.  Reasonable
Best Efforts; Further Assurances.  (a) 
Subject to the terms and conditions of this Agreement, Buyer and Seller will
use their reasonable best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, and cooperate with the other party in doing,
all things necessary, proper, advisable or desirable under Applicable Laws to
consummate and make effective the transactions contemplated by this Agreement
in an expeditious manner, including (i) preparing and filing as promptly
as practicable with any Governmental Authority or other third party all
documentation to effect all necessary filings, notices, petitions, statements,
registrations, submissions of information, applications and other documents,
and (ii) obtaining and maintaining all approvals, consents, registrations,
permits, waivers, exemptions, authorizations and other confirmations required
to be obtained from any Governmental Authority or any other Person that are
necessary, proper or advisable to consummate the transactions contemplated by
this Agreement, including those set forth in Sections 3.03 and 4.04 and in the
Disclosure Schedule.


 


(b)           In furtherance and not in limitation
of the foregoing, each of Buyer and Seller shall (i) make an appropriate
filing of a Notification and Report Form pursuant to the HSR Act with
respect to the transactions contemplated hereby as promptly as practicable and
in any event within 10 Business Days of the date hereof, (ii) make any
appropriate filings or requests required under other applicable Antitrust Laws
as promptly as practicable and in any event within the applicable statutory
filing deadlines, (iii) supply as promptly as practicable any additional
information and documentary material that may be requested pursuant to the HSR
Act or other applicable Antitrust Laws and (iv) take all other
commercially reasonable and legal actions necessary to cause the expiration or
termination of the applicable waiting periods under the HSR Act or other
applicable Antitrust Laws as soon as practicable.  Fees associated with the filing under the HSR
Act and filings under other applicable Antitrust Laws will be paid by Buyer.


 


(c)           Also in furtherance and not in
limitation of the foregoing, each of Buyer and Seller shall make any other
filing required in connection with any consent of a Governmental Authority
required to permit consummation of the transactions contemplated hereby as
promptly as practicable and in any event within 20 Business Days of the date
hereof.


 


(d)           Notwithstanding anything to the
contrary in this Agreement, neither Buyer, Seller nor any of their respective
Affiliates will be required, in connection


 


68

















 


with
the matters covered by this Section 7.01, to (i) commence or defend
any litigation against any Governmental Authority, (ii) hold separate
(including by trust or otherwise) or divest any of their respective businesses,
product lines, operations or assets, (iii) agree to any limitation on the
operation or conduct of their respective businesses, (iv) waive any of the
conditions to the Closing set forth in Article 10 hereof, (v) terminate
any Contract or other business relationship or (vi) enter into any consent
decree or other agreement with any Governmental Authority.


 


(e)           Seller hereby constitutes and
appoints, effective as of the Closing Date, Buyer and its successors and
assigns as the true and lawful attorney of Seller with full power of
substitution in the name of Buyer, or in the name of Seller but for the benefit
of Buyer, (i) to collect for the account of Buyer any items of Purchased
Assets and (ii) to institute and prosecute all Legal Proceedings which
Buyer may in its sole discretion deem proper in order to assert or enforce any
right, title or interest in, to or under the Purchased Assets, and to defend or
compromise any and all Legal Proceedings in respect of the Purchased
Assets.  Buyer shall be entitled to
retain for its own account any amounts collected pursuant to the foregoing
powers, including any amounts payable as interest in respect thereof.


 


(f)            Buyer and Seller shall take all
actions (or shall cause their respective Affiliates to take all actions),
including the execution and delivery of all documents, instruments and other
certificates reasonably requested by the other party, to give effect to the
transactions contemplated by this Agreement, including, (i) in the case of
Buyer, the return of any Excluded Assets and any other assets that are not
Purchased Assets that are owned by Seller or any of its Affiliates and are
transferred to Buyer at or after the Closing, and the forwarding or remittance
to Seller of any payments received by Buyer or any of its Affiliates on account
of any Excluded Asset, including any accounts or notes receivable of any Retained
Business, and (ii) in the case of Seller, to vest title to the Purchased
Assets in Buyer (or, subject to Section 13.05, Buyer’s designated
Affiliate(s)) and to forward and remit to Buyer any payment on account of any
Purchased Asset, including any accounts or notes receivable; it being
understood that nothing in this Section 7.01 shall require Buyer or Seller
to (i) consent to any action or omission that would be inconsistent with Section 5.01
or waive any condition set forth in Article 10 or (ii) agree to amend
or waive any provision of this Agreement.


 


Section 7.02.  Certain
Filings.  Seller and Buyer
shall cooperate with one another (i) in determining whether any action by
or in respect of, or filing with, any Governmental Authority is required, or
any actions, consents, approvals or waivers are required to be obtained from
parties to any material Contracts, in connection with the consummation of the
transactions contemplated by this Agreement and (ii) in taking such
actions or making any such filings, furnishing information required in
connection therewith and seeking timely to obtain any such actions, consents,
approvals or waivers.  Without limiting
the generality of


 


69

















 


the
foregoing, Seller and its Affiliates and Representatives shall reasonably
cooperate with Buyer and its Affiliates and Representatives in connection with
the preparation and filing of any SEC reports and other filings required in
connection with the execution and delivery of this Agreement or the
transactions contemplated hereby, including the preparation and filing of
audited and unaudited financial statements for the Business and the related
documents that comply with Regulation S-X promulgated under the Securities Act.  Such reasonable cooperation shall include
Seller providing Buyer and its Representatives with such information regarding
the Business as is required to be included in any such SEC reports or other
filings, including pursuant to Regulation S-X promulgated under the Securities
Act.  Buyer shall bear all of the
out-of-pocket costs and expenses (including attorneys’ fees, but excluding
reimbursement for general overhead, salaries and employee benefits) incurred by
Seller or any of its Affiliates or Representatives in connection with the
foregoing.


 


Section 7.03.  Public
Announcements.  The parties
agree to consult with each other before issuing any press release or making any
public statement with respect to this Agreement or the transactions
contemplated hereby and, except for any press releases and public statements
the making of which may be required by Applicable Law or any listing agreement
with any national securities exchange, will not issue any such press release or
make any such public statement prior to such consultation; provided, that no party shall be required
to consult with the other pursuant to this Section 7.03 to the extent any
proposed release or announcement is consistent with information that has
previously been made public without breach of the obligations under this Section 7.03.


 


Section 7.04.  Notification
of Certain Matters.  Seller,
on the one hand, and Buyer, on the other hand, agree to give prompt notice to
the other of (a) any failure on its part to comply with or satisfy any
covenant or agreement to be complied with or satisfied by it hereunder that
could reasonably be expected to cause the applicable conditions in Article 10
not to be satisfied and any inaccuracy of any representation or warranty
contained in this Agreement that could reasonably be expected to cause the
applicable conditions in Article 10 not to be satisfied; provided that the delivery of any notice
pursuant to this Section 7.04 does not limit or otherwise affect the
remedies available hereunder to the party receiving such notice or the
representations or warranties of, or the conditions to the obligations of, the
parties hereto.


 


Section 7.05.  Intellectual
Property.  (a)  Following
the Closing, Buyer and its Affiliates and their respective directors, officers,
successors, assigns, agents or representatives shall not register or attempt to
register, and, except as otherwise set forth in this Section 7.05, shall
not directly or indirectly use, in any fashion any of the Excluded Marks or any
derivatives thereof or anything confusingly similar thereto.  None of Buyer or any of its Affiliates shall
challenge or assist any third party in opposing the rights of Seller or any
Affiliate of Seller anywhere in the world in any of the Excluded Marks,
including the rights of Cobham Defense Electronic Systems Corporation and its
Affiliates in and to the


 


70

















 


“M/A-COM”
name and mark (the “M/A-COM Mark”).  Except as expressly set forth in this Section 7.05,
Buyer acknowledges and agrees that no right or grant is provided for herein for
Buyer to (i) use the Excluded Marks alone or in combination with any other
mark, name or term or (ii) grant sublicenses to the Excluded Marks for any
purpose whatsoever.  Subject to the
restrictions set forth herein, after the Closing, Buyer shall have the right to
use existing domain names, packaging, line cards, labeling, containers,
supplies, advertising materials, technical data sheets and any similar
materials that are Purchased Assets and bear any of the Excluded Marks (other
than the M/A-COM Mark) until the earlier of (x) six (6) months after
the Closing Date and (y) the date existing stocks are exhausted.  Subject to the restrictions set forth herein,
for nine (9) months after the Closing Date, Buyer and its Affiliates shall
have the right to sell product inventory that are Purchased Assets and to use,
reproduce and affix the Excluded Marks (other than the M/A-COM Mark) (in the
same manner that such Excluded Marks were prior to the Closing so used,
reproduced or affixed) in connection with products manufactured by or on behalf
of Buyer and its Affiliates prior to the date that is 90 days after the Closing
Date.  Notwithstanding the foregoing,
Seller hereby grants to Buyer and its Affiliates (A) a non-exclusive,
worldwide, fully-paid and royalty free license under the Excluded Marks (other
than the M/A-COM Mark) to use tools, dies and molds which carry such Excluded
Marks and to market and sell any materials created with such tools, dies or
molds for nine (9) months after the Closing Date and (B) an
exclusive, worldwide, fully-paid and royalty-free license under the M/A-COM
Mark to use, reproduce and affix the M/A-COM Mark in connection with products
manufactured by or on behalf of Buyer and its Affiliates in connection with the
conduct of the Business in the field of land mobile radio until September 30,
2011.  Buyer and its Affiliates shall
comply with all Applicable Laws in any use of any of the Excluded Marks
(including the M/A-COM Mark) and the products manufactured by or on behalf of
Buyer and its Affiliates and in respect of which such Excluded Marks are used,
reproduced or affixed shall be of a quality and nature comparable to such
products manufactured by or on behalf of such businesses prior to the Closing.  Buyer and its Affiliates’ use of such
Excluded Marks shall inure solely to the benefit of Seller and its
Affiliates.  After the Closing, subject
to the obligations set forth in Section 5.04 and provided that such use is
not primarily related to the Business, Seller and its Affiliates shall have the
right to use existing packaging, line cards, labeling, containers, supplies,
advertising materials, technical data sheets and any similar materials bearing
the M/A-COM Mark or any Trademark included in the Transferred Intellectual
Property until the earlier of (i) 90 days after the Closing Date and (ii) the
date existing stocks are exhausted.


 


(b)           From and after the Closing Date,
Buyer hereby covenants and agrees, on behalf of itself and its Affiliates, that
it shall not commence or threaten to commence, or cause to be commenced or
threatened, any Legal Proceeding against Seller or its Affiliates, or their
respective customers and suppliers, in connection with or otherwise arising
from the use of any Transferred Patent (other than any Transferred Patent to
the extent such Transferred Patent relates to the Targeted Technology) or
Know-How or copyright included in the Owned


 


71

















 


Intellectual
Property Rights with respect to (i) the manufacture (or manufacture by any
Person on behalf of Seller or any of its Affiliates), use, sale, offer for
sale, importation, reproduction, performance, display or distribution of any
product or service provided as of the Closing Date by any Retained Business, or
proposed as of the Closing Date to be provided by any Retained Business, or (ii) the
conduct of any Retained Business as such Retained Business is conducted, or
proposed to be conducted, as of the Closing Date, in each case of (i) or
(ii), subject to the obligations set forth in Section 5.04 (collectively,
the “Buyer Covenant Not To Sue”).  Notwithstanding anything in this Agreement to
the contrary, the Parties acknowledge that the Buyer Covenant Not To Sue may be
assigned or transferred in whole or part, in connection with a sale or transfer
of a Divested Business (and will, for the avoidance of doubt, continue to be
effective with respect to the purchaser or transferee of such Divested Business
and its Affiliates and their respective customers and suppliers), but only with
respect to (x) the activities contemplated in clauses (i) and/or (ii) above
and (y) only to the extent that such activities relate to such Divested
Business (it being understood that in no event shall the Buyer Covenant Not To
Sue extend to any other business, products or operations of the purchaser or
transferee of a Divested Business that are not the business, products or
operations of the Divested Business regardless of whether such business,
products or operations are similar or identical to the business, products or
operations of such Divested Business).


 


(c)           From and after the Closing Date,
Seller hereby covenants and agrees, on behalf of itself and its Affiliates,
that it shall not commence or threaten to commence, or cause to be commenced or
threatened, any Legal Proceeding against Buyer or its Affiliates, or their
respective customers and suppliers, in connection with or otherwise arising
from the use of any Patent, Know-How or copyright owned by Seller or any of its
Affiliates as of the Closing Date with respect to (i) the manufacture (or
manufacture by any Person on behalf of Buyer or any of its Affiliates), use,
sale, offer for sale, importation, reproduction, performance, display or
distribution of any product or service provided by the Business as of the
Closing Date, or proposed as of the Closing Date to be provided by the Business
or (ii) the conduct of any Business as such Business is conducted or
proposed to be conducted, as of the Closing Date (collectively, the “Seller Covenant Not To Sue”).  Notwithstanding anything in this Agreement to
the contrary, Buyer and Seller acknowledge that the Seller Covenant Not To Sue
may be assigned or transferred in whole or part, in connection with a sale or
transfer of a Divested Business (and will, for the avoidance of doubt, continue
to be effective with respect to the purchaser or transferee of such Divested
Business and its Affiliates and their respective customers and suppliers), but
only with respect to (x) the activities contemplated in clauses (i) and/or
(ii) above and (y) only to the extent that such activities relate to
such Divested Business (it being understood that in no event shall the Seller
Covenant Not To Sue extend to any other business, products or operations of the
purchaser or transferee of a Divested Business that are not the business,
products or operations of the Divested Business regardless of whether such
business, products or operations are similar or identical to the business,
products or operations of such Divested Business).


 


72

















 


For the
avoidance of doubt, the Seller Covenant Not To Sue shall not apply to the
manufacture, use, sale, offer for sale, importation, reproduction, performance,
display or distribution of any Seller Product or any product or service which
is a substitute therefor.


 


Section 7.06.  WARN
Act.  The parties agree to
cooperate in good faith to determine whether any notification may be required
under the WARN Act as a result of the transactions contemplated by this
Agreement.  Buyer will be responsible for
providing any notification that may be required under the WARN Act with respect
to any Transferred U.S. Employees. 
Seller, with respect to any terminations of employment of U.S. employees
employed by Seller or any of its Affiliates that occur within the 90 days prior
to or following the Closing Date, will notify Buyer of the number of employees
and locations of employment affected and will be responsible for providing any
notification that may be required under the WARN Act with respect to any such
U.S. employees who are not Transferred U.S. Employees; provided that Buyer has given sufficient
notice to enable Seller to provide such timely notification.


 


Section 7.07.  Nonsolicitation.  (a)  Seller agrees that for a
period of two full years after the Closing Date, without Buyer’s prior written
consent, neither Seller nor any of its Affiliates shall (i) solicit the
employment or services (whether as an employee, consultant, independent
contractor or otherwise) of any of the Business Employees specified on Schedule
7.07(a) or (ii) hire any of such Business Employees; provided that this Section 7.07(a) shall
not apply with respect to any such Business Employee whose employment has been
terminated by Buyer or its Affiliates as part of a reduction in force.


 


(b)           Seller agrees that for a period of
two full years after the Closing Date, without Buyer’s prior written consent,
neither Seller nor any of its Affiliates shall (i) solicit the employment
or services (whether as an employee, consultant, independent contractor or
otherwise) of any of the Business Employees who are not covered by Section 7.07(a) and
who as of the date hereof are within Seller’s compensation bands 0-3 or (ii) hire
any of such Business Employees; provided that
this Section 7.07(b) shall not apply with respect to any such
Business Employee (x) whose employment has been terminated by Buyer or its
Affiliates as part of a reduction in force, (y) whose employment has otherwise
been terminated by Buyer or its Affiliates at least three months prior to such
solicitation or hiring by Seller or any of its Affiliates or (z) who has
voluntarily terminated his or her employment at least six months prior to such
solicitation or hiring by Seller or any of its Affiliates.


 


(c)           Seller agrees that for a period of
two full years after the Closing Date, without Buyer’s prior written consent,
neither Seller nor any of its Affiliates shall solicit the employment or
services (whether as an employee, consultant, independent contractor or
otherwise) of any of the Business Employees not covered by Section 7.07(a) or
Section 7.07(b) who are offered employment by Buyer pursuant to Section 9.01(a) or
Section 9.02 and who accept such


 


73

















 


employment;
provided that this Section 7.07(c) shall
not apply with respect to any such Business Employee (x) whose employment
has been terminated by Buyer or its Affiliates as part of a reduction in force,
(y) whose employment has otherwise been terminated by Buyer or its
Affiliates at least three months prior to such solicitation by Seller or any of
its Affiliates or (z) who has voluntarily terminated his or her employment
at least six months prior to such solicitation by Seller or any of its
Affiliates.


 


(d)           Seller agrees that for a period of
six months after the Closing Date, without Buyer’s prior written consent,
neither Seller nor any of its Affiliates shall hire any of the Business
Employees not covered by Section 7.07(a) or Section 7.07(b) who
are offered employment by Buyer pursuant to Section 9.01(a) or Section 9.02
but do not accept such employment.


 


(e)           Buyer agrees that for a period of two
full years after the Closing Date, without Seller’s prior written consent,
neither Buyer nor any of its Affiliates shall solicit the employment or
services of (whether as an employee, consultant, independent contractor or
otherwise), or hire, any of the employees of Seller and its Affiliates
specified on Schedule 7.07(e); provided that
this Section 7.07(e) shall not apply with respect to any such
employee of Seller and its Affiliates (i) whose employment has been
terminated by Seller or its Affiliates prior to such solicitation or hiring by
Buyer or any of its Affiliates or (ii) who has voluntarily terminated his
or her employment at least six months prior to such solicitation or hiring by
Buyer or any of its Affiliates.


 


(f)            For purposes of this Section 7.07,
the term “solicit the employment or services” shall not be deemed to include an
individual’s otherwise unsolicited expression of interest in a position where
the individual learns of the job opening through generalized searches through
media advertisements of general circulation or open job fairs or through the
efforts of an employment search firm not retained by such individual.


 


(g)           Notwithstanding anything to the
contrary in this Section 7.07, Seller may solicit and hire as a consultant
for litigation support services any Person after their employment relationship
with Buyer shall have terminated.


 


Section 7.08.  Certain
Matters.  Seller and Buyer
will be responsible for the costs of certain matters as described on Schedule
7.08.


 


ARTICLE 8

TAX MATTERS


 


Section 8.01.  Allocation of
Taxes to Seller.  Seller shall
be responsible for, will pay or cause to be paid, and will indemnify Buyer and
its Affiliates from and against, any and all of the following (collectively, “Seller’s Taxes”):


 


74

















 


(a)           all Taxes of the Subsidiary with
respect to all taxable periods that end on or before the Closing Date;


 


(b)           all Income Taxes imposed on Seller or
its Affiliates (other than the Subsidiary);


 


(c)           all Taxes relating to the Non-Entity
Business or the Purchased Assets with respect to all taxable periods that end
on or before the Closing Date;


 


(d)           Seller’s portion of the Taxes for any
Straddle Period, as determined under Section 8.03;


 


(e)           50% of all Transfer Taxes (other than
Excess Transfer Taxes) and 50% of all Excess Transfer Taxes, provided that Seller shall not be
responsible for any portion of an Excess Transfer Tax (i) for which a
Resale Exemption Certificate is obtainable under Applicable Law but is not
timely obtained due to a Buyer action, delay or omission or (ii) that is a
GST or QST to the extent that such Tax is imposed due to a Buyer action, delay
or omission;


 


(f)            50% of any Buyer CFC Taxes; and


 


(g)           any additional Tax incurred by the
Subsidiary as a consequence of the inclusion of any item of income in, or the
exclusion of any item of deduction from, the taxable income of the Subsidiary
for any taxable period or portion thereof ending after the Closing Date as a
result of any (i) change in method of accounting; (ii) closing or
similar agreement entered into with a Taxing Authority; (iii) intercompany
transaction; (iv) installment sale or open transaction; (v) receipt
of a prepaid amount; or (vi) deferral of cancellation of indebtedness
income, in each case occurring during a taxable period or portion thereof
ending on or before the Closing Date;


 


provided, however, that Seller’s Taxes shall not
include any Taxes arising (i) as a result of any
out-of-the-ordinary-course actions taken by Buyer or any of its Affiliates with
respect to the Subsidiary, the Non-Entity Business or the Purchased Assets
after the effective time of the Closing or (ii) that are accrued Taxes
taken into account in the calculation of Final Closing Working Capital.


 


Section 8.02.  Allocation of
Taxes to Buyer.  Buyer shall
be responsible for, will pay or cause to be paid, and will indemnify Seller and
its Affiliates from and against, any and all of the following (collectively, “Buyer’s Taxes”):


 


(a)           all Taxes of or relating to the
Subsidiary, the Non-Entity Business or the Purchased Assets with respect to
taxable periods that begin after the Closing Date;


 


(b)           Buyer’s portion of the Taxes for any
Straddle Period, as determined pursuant to Section 8.03;


 


75

















 


(c)           any Taxes of or relating to the
Subsidiary, the Non-Entity Business or the Purchased Assets that arise as a
result of an out-of-the-ordinary-course action taken by Buyer or any of its
Affiliates after the effective time of the Closing;


 


(d)           all Transfer Taxes (including Excess
Transfer Taxes) not payable by Seller pursuant to Section 8.01(e);


 


(e)           any Taxes that are accrued Taxes
taken into account in the calculation of Final Closing Working Capital; and


 


(f)            50% of any Seller CFC Taxes.


 


Section 8.03.  Allocation of
Straddle Period Taxes.  Taxes
for Straddle Periods shall be allocated between Seller and Buyer as follows:


 


(a)           Income Taxes shall be allocated based
on an actual closing of the books if permitted by Applicable Law and agreed to
by Seller and Buyer.  Income Taxes shall
in all other cases be allocated based on an interim closing of the books as of
11:59 p.m. E.T. on the Closing Date. 
The allocation shall in either event utilize the Tax accounting methods,
practices and procedures used by the applicable entity in preparing its
previous Tax Returns.


 


(b)           Taxes imposed on specific
transactions, including value added, sales and use Taxes (but excluding
Transfer Taxes), shall be allocated based on the time at which such
transactions occur.  Taxes on
transactions occurring through the end of the Closing Date shall be allocated
to Seller and all other Taxes shall be allocated to Buyer; provided,
however, that Taxes on out-of the-ordinary-course transactions that
occur after the Closing on the Closing Date shall be allocated to Buyer.


 


(c)           Ad valorem, real property, personal
property, and similar Taxes and fees shall be allocated on a ratable daily
basis in accordance with the most recent certified or uncontested Tax valuation
or assessment.


 


Section 8.04.  Tax Returns;
Payment of Taxes; Carrybacks.  (a) 
Seller shall timely prepare and file all Tax Returns of or relating to the
Subsidiary, the Non-Entity Business or the Purchased Assets that are required
to be filed (after giving effect to any extension of time in which to file) on
or before the Closing Date.  Seller shall
timely pay all Taxes shown as due on such Tax Returns.


 


(b)           Buyer shall timely prepare and file
all Tax Returns of or relating to the Subsidiary, the Non-Entity Business or
the Purchased Assets that are required to be filed after the Closing Date.  Subject to Buyer’s right to indemnification
pursuant to Section 8.01 and this Section 8.04(b), Buyer shall timely
pay all Taxes shown as due on all such Tax Returns.  Buyer shall permit Seller to review and
comment on any such Tax Return for which Seller or any of its Affiliates has
any indemnification obligation under this Agreement, and Buyer shall make such


 


76

















 


revisions
to such Tax Returns as are reasonably requested by Seller.  Seller shall pay over to Buyer, no fewer than
three Business Days prior to the due date of the applicable Tax Return, an
amount of cash sufficient for the payment of any Taxes shown as due on any such
Tax Return for which Seller bears responsibility pursuant to Section 8.01.


 


(c)           The party responsible under
Applicable Law for filing Tax Returns with respect to Transfer Taxes shall
timely prepare and file such Tax Returns (“Transfer
Tax Returns”) and pay the Taxes shown thereon as owed.  If Applicable Law permits either Buyer or
Seller to file a Transfer Tax Return, Seller shall timely prepare and file such
return and pay such Taxes.  The party not
responsible for filing any such Transfer Tax Return shall pay over to the party
responsible for such filing the portion of such Transfer Taxes shown on such
Transfer Tax Return for which the payor is liable pursuant to Sections 8.01 or
8.02 (as the case may be) no fewer than three Business Days prior to the due
date of such Transfer Tax Return; provided, however, that no such payment shall be
due until ten Business Days after the party responsible for filing such
Transfer Tax Return has provided the other party with a completed copy of such
Transfer Tax Return for review and comment.


 


(d)           Buyer shall and shall cause its
Affiliates to make any election available to them to waive the right to carry
back any item of loss, credit or other Tax benefit recognized in a taxable
period beginning after the Closing Date to (i) a taxable period ending on
or before the Closing Date or (ii) a Straddle Period.  If Buyer or its Affiliates cannot waive the
right to effect such a carryback, Buyer or its Affiliates shall effect such
carryback and Buyer shall retain any refund or credit of Taxes produced by such
carryback.


 


(e)           Except as otherwise provided in Section 8.04(d) and
Section 8.07, Buyer shall file no amended Tax Returns and no claims for
refund of Taxes with respect to a taxable period ending on or before the
Closing Date or, in the case of a Straddle Period, the portion of such Straddle
Period ending on the Closing Date, in each case without the written consent of
Seller.  Buyer shall also cause its
Affiliates not to file any such Tax Returns or claims for refund of Taxes.


 


Section 8.05.  Tax
Contests.  (a)  Each of
Seller and Buyer shall provide notice to the other of any claim or potential
claim for Taxes for which it may seek indemnification pursuant to Section 8.06.  Such notice shall contain factual information
(to the extent known) describing the asserted Tax claim in reasonable detail
and shall be accompanied by copies of any notice and other documents received
from the Taxing Authority in respect of such Taxes.  The party seeking indemnification shall
provide such notice within 15 Business Days of the earlier to occur of (i) its
receipt of a written communication from the Taxing Authority and (ii) personal
contact between an agent of the Taxing Authority and an employee of such party
who is responsible for Taxes, in each case with respect to such Taxes.  If the party seeking indemnification fails to
give the other party notice within such period, then (x) if the
indemnifying party is precluded from


 


77

















 


contesting
the asserted Tax Liability in any forum as a result of such failure, the
indemnifying party shall have no obligation to indemnify the indemnified party
for any Taxes arising out of such asserted Tax Liability, and (y) if the
indemnifying party is not precluded from contesting such asserted Tax Liability
in any forum, but such failure results in a monetary detriment to the
indemnifying party, then any amount that the indemnifying party is otherwise
required to pay the indemnified party pursuant to Section 8.06 hereof
shall be reduced by the amount of such detriment.


 


(b)           Seller or its designee shall have the
right, upon written notice to Buyer within 30 days after delivery by Buyer to
Seller of the notice described in Section 8.05(a), to control the conduct,
including settlement or other disposition thereof, of any Contest relating to a
Tax matter to the extent such Contest is in connection with any Taxes for which
Seller may be liable pursuant to Section 8.01 hereof and to employ counsel
of its choice at its expense in such Contest. 
Buyer shall have the right, at Buyer’s own expense, to consult with
Seller regarding any Contest that might affect a taxable period that begins
after the Closing Date (or, in the case of a Straddle Period, the portion of
such Straddle Period that begins after the Closing Date).


 


(c)           Buyer shall have the right to control
the conduct of any Contest not described in Section 8.05(b).  Seller shall have the right, at Seller’s own
expense, to consult with Buyer regarding any Contest that might affect a
taxable period that ends on or before the Closing Date (or, in the case of a
Straddle Period, the portion of such Straddle Period that ends on the Closing
Date).  Buyer may settle or otherwise
dispose of any such Contest only with the consent of Seller, which consent
shall not be unreasonably withheld, delayed or conditioned.


 


Section 8.06. 
Indemnification.  (a) 
The indemnification provisions set forth in this Section 8.06 are the
exclusive remedy for obligations of the parties arising under this Agreement
that relate to Taxes, and Article 11 of this Agreement shall not apply to
such obligations, except (i) that Article 11 of this Agreement shall
apply to breaches of Section 3.15 and (ii) as specifically set forth
in Section 11.04.  The covenants set
forth in this Article 8 shall survive the Closing without time limitation.


 


(b)           Seller shall be liable for, and
covenants and agrees to indemnify and hold harmless Buyer and its Affiliates
from and against, any and all Liabilities incurred by Buyer or its Affiliates:


 


(i)            by
reason of a breach by Seller of any covenant contained in this Article 8;
or


 


(ii)           for
Seller’s Taxes.


 


78

















 


(c)           Buyer shall be liable for, and
covenants and agrees to indemnify and hold harmless Seller and its Affiliates
from and against, any and all Liabilities incurred by any of Seller or its
Affiliates:


 


(i)            by
reason of a breach by Buyer of any covenant contained in this Article 8;
or


 


(ii)           for
Buyer’s Taxes.


 


(d)           If a party (the “Tax Indemnified Party”) determines that it
or any of its Affiliates is entitled to indemnification by another party (the “Tax Indemnifying Party”) under Section 8.06(b) or
Section 8.06(c) hereof, the Tax Indemnified Party shall promptly
deliver to the Tax Indemnifying Party a written notice and demand therefor (the
“Tax Notice”) specifying the basis
for indemnification and the amount for which the Tax Indemnified Party requests
indemnification (a “Tax Claim”),
together with any supporting documentation (including, if applicable, any
relevant notice from any Taxing Authority). 
The Tax Notice must be received by the Tax Indemnifying Party no later
than 60 days before the expiration of the applicable Tax statute of
limitations; provided, however, that if the Tax Indemnified
Party does not receive notice from the applicable Taxing Authority (“Taxing Authority Notice”) that an item
exists that could give rise to a Tax Claim more than 30 days before the
expiration of the applicable Tax statute of limitations, then the Tax Notice
must be received by the Tax Indemnifying Party as promptly as practicable after
the Tax Indemnified Party receives the Taxing Authority Notice (but in no event
more than five Business Days after the Tax Indemnified Party receives the
Taxing Authority Notice).  If the Tax Indemnifying
Party objects to the Tax Claim in the manner set forth in Section 8.06(e) hereof
or if either the Tax Indemnifying Party or the Tax Indemnified Party exercises
Contest rights as contemplated by Section 8.05, then the Tax Indemnifying
Party shall not be liable to make an indemnification payment to the Tax
Indemnified Party until there is a determination by the Accounting Referee or a
Final Determination regarding the Tax Claim, as the case may be.  In all other cases, the Tax Indemnifying
Party shall pay the Tax Indemnified Party the amount set forth in the Tax
Notice within 30 days after receipt of the Tax Notice.


 


(e)           The Tax Indemnifying Party may object
to any Tax Claim by giving the Tax Indemnified Party, within 30 days following
receipt of the related Tax Notice, written notice setting forth the Tax
Indemnifying Party’s grounds for so objecting (the “Tax Objection Notice”). 
If the Tax Indemnifying Party does not give the Tax Indemnified Party
the Tax Objection Notice within such 30-day period, the Tax Indemnifying Party
shall be treated as having agreed to all elements of the Tax Claim and shall
satisfy it in the manner provided in Section 8.06(d).


 


(f)            If the Tax Indemnified Party and the
Tax Indemnifying Party are unable to settle a dispute regarding a Tax Claim
within 30 days after receipt of the


 


79

















 


Tax
Objection Notice, the Tax Indemnified Party and the Tax Indemnifying Party
shall jointly request that the Accounting Referee to resolve the dispute in the
manner provided in Section 8.06.


 


(g)           Failure by the Tax Indemnified Party
to promptly deliver to the Tax Indemnifying Party a Tax Notice in accordance
with Section 8.06(d) hereof shall not relieve the Tax Indemnifying
Party of any of its obligations under this Agreement except to the extent the
Tax Indemnifying Party is actually prejudiced by such failure.


 


Section 8.07.  Refunds.  (a)  Buyer shall and shall
cause its Affiliates to pay over the amount of any refund of Seller’s Taxes
(together with any interest thereon received from a Taxing Authority) (“Seller’s Refunds”) within five Business
Days after receipt thereof or credit against Tax Liability for another taxable
period.  Buyer or its Affiliates shall
hold any cash refund of such Taxes in trust for Seller.  Seller shall return the amount of such refund
(and any interest received thereon) or credit within five Business Days of
written demand by Buyer if Buyer is required to return the refund to the Taxing
Authority.


 


(b)           Seller shall and shall cause its
Affiliates to pay over the amount of any refund of Buyer’s Taxes (together with
any interest thereon received from a Taxing Authority) (“Buyer’s Refunds”) within five Business Days
after receipt thereof or credit against Tax Liability for another taxable
period.  Seller or its Affiliates shall
hold any cash refund of such Taxes in trust for Buyer.  Buyer shall return the amount of such refund
(and any interest received thereon) or credit within five Business Days of
written demand by Seller if Seller is required to return the refund to the
Taxing Authority.


 


(c)           Upon the request of Seller, Buyer
shall file, or cause an Affiliate to file, claims for Seller’s Refunds, in such
form as Seller may reasonably request; provided, however, that the filing of any such
claim will not result, in Buyer’s reasonable determination, in any prejudice to
Buyer or its Affiliates.  Seller shall
have the sole right to prosecute any claims for Seller’s Refunds (by suit or
otherwise) at Seller’s expense and with counsel of Seller’s choice.


 


(d)           Upon the request of Buyer, Seller
shall and shall cause its Affiliates to file, claims for Buyer’s Refunds, in
such form as Buyer may reasonably request; provided, however, that the filing of any such
claim will not result, in Seller’s reasonable determination, in any prejudice
to Seller or its Affiliates.  Buyer shall
have the sole right to prosecute any claims for Buyer’s Refunds (by suit or
otherwise) at Buyer’s expense and with counsel of Buyer’s choice.


 


(e)           Any refunds of Taxes other than
Seller’s Refunds and Buyer’s Refunds shall be the property of the payee of such
refunds and no other party or its Affiliates shall have any right to such
refunds.


 


80














 


Section 8.08.  Assistance
And Cooperation.  After the
Closing Date, Seller and Buyer shall cooperate (and shall cause their
respective Affiliates to cooperate) with each other and with each other’s
agents, including accounting firms and legal counsel, in connection with Tax
matters relating to the Subsidiary, the Non-Entity Business and the Purchased
Assets, including (i) the preparation and filing of Tax Returns, (ii) determining
the Liability for and amount of any Taxes due or the right to and amount of any
refund of Taxes, (iii) examinations of Tax Returns, and (iv) Contests.  Such cooperation shall include making all
information and documents in their possession related to the Business available
to the other, as provided in Section 8.09 hereof.  Seller and Buyer also shall (and shall cause
their respective Affiliates to) make available to the other, as reasonably
requested and available, personnel responsible for preparing, maintaining and
interpreting information and documents relevant to Taxes.  Any information or documents provided under
this Section 8.08 shall be kept confidential by the party receiving the
information or documents, except as may otherwise be necessary in connection
with the filing of Tax Returns or in connection with any Contest.


 


Section 8.09.  Tax
Records.  Seller, Buyer, and
their respective Affiliates shall make available to each other (at no cost to
the requesting party) for inspection and copying during normal business hours
upon reasonable notice all Tax records in their possession relating to the
Subsidiary, the Non-Entity Business or the Purchased Assets to the extent
reasonably required by the other party in connection with the preparation of
Tax Returns, audits, litigation, or the resolution of items under this Article 8.  Seller, Buyer, and their respective
Affiliates shall preserve and keep such Tax records in their possession until
the expiration of any applicable statutes of limitation and as otherwise
required by Applicable Law, but in any event for a period of not less than 10
years after the Closing Date.


 


Section 8.10.  Dispute
Resolution.  If Seller and
Buyer fail to agree on (a) any matter in this Article 8 or Section 2.06
that requires the agreement of the parties with respect to a Tax matter, then
Seller and Buyer such jointly refer such matter to the Accounting Referee for
its determination.  Seller and Buyer
shall deliver to the Accounting Referee any documentation that may be necessary
or useful to the Accounting Referee’s determination.  Each of Buyer and Seller shall be entitled to
submit to the Accounting Referee a memorandum setting forth its position with
respect to such matter.  The Accounting
Referee shall make a determination within 60 days of the referral of such matter
to it.  Seller or Buyer, as the case may
be, shall pay to the other party any amount determined by the Accounting
Referee to be owed within 10 days of the date on which the Accounting Referee
makes its determination.  The
determination of the Accounting Referee shall be final, conclusive and binding
on all parties.  The costs incurred in
retaining the Accounting Referee shall be shared equally by Seller and Buyer.


 


Section 8.11.  Payment.  All amounts required to be paid to
a party under this Article 8 shall be paid in U.S. Dollars, translated if
necessary from local currency at the spot rate in effect on the date that
payment is made.  If a party fails


 


81

















 


to make
a payment due and owing under this Article 8 within 30 days of the date
prescribed herein, the unpaid amount shall accrue simple interest at a rate of
eight percent per annum from but excluding the due date to and including the
date on which payment is made.


 


Section 8.12. 
Adjustment.  All
amounts paid pursuant to this Article 8 (other than interest) or Article 11
hereof shall be treated by the parties as an adjustment to the Purchase Price
to the extent permitted by Applicable Law.


 


Section 8.13.  Termination
Of Tax Allocation Agreements.  All
Tax allocation or tax sharing agreements between any of Seller or its
Affiliates, on the one hand, and the Subsidiary, on the other hand, shall be
terminated as of the day before the Closing Date, and no such party shall have
any obligation to any other party thereunder with respect to any taxable
period, past, present or future.


 


Section 8.14.  CFC Legal
Proceedings.  (a) If the
Subsidiary or Buyer on its behalf takes any material action outside the
ordinary course of the Subsidiary’s business as currently conducted (including
an extraordinary disposition of assets, engaging in a merger or other business
combination, making extraordinary distributions to shareholders, changing any
accounting method (except as may be required by law), changing any hedging
method or making any election pursuant to section 338 of the Code), and if such
action results in an increase in the Taxes payable by Seller or its Affiliates,
which increase is attributable to (i) the generation of a material amount
of additional “subpart F income” (as defined in section 952 of the Code) to
Seller or any of its Affiliates for U.S. federal Income Tax purposes (but only
to the extent U.S. foreign tax credits are not thereby available to Seller or
any Affiliate); (ii) a material increase or reduction in the Subsidiary’s
current or accumulated earnings and profits or in its pool of foreign Taxes for
U.S. federal Income Tax purposes, or (iii) any other material adverse Tax
effect on Seller or any of its Affiliates resulting from such action (any such
increase in Taxes, “Seller CFC Taxes”),
then Buyer shall be responsible for the portion of such Seller CFC Taxes
specified in Section 8.02(f).


 


(b)           If, prior to the end of the Closing
Date, the Subsidiary or Seller on its behalf takes any material action outside
the ordinary course of the Subsidiary’s business as currently conducted
(including, without limitation, an extraordinary disposition of assets,
engaging in a merger or other business combination, making extraordinary
distributions to shareholders, changing any accounting method (except as may be
required by law), or changing any hedging method, and if such action results in
an increase in the Taxes payable by Buyer or its Affiliates, which increase is
attributable to (i) the generation of a material amount of additional
“subpart F income” (as defined in section 952 of the Code) to Buyer or any of
its Affiliates for U.S. federal Income Tax purposes (but only to the extent
U.S. foreign tax credits are not thereby available to Buyer or any Affiliate); (ii) a
material increase or reduction in the Subsidiary’s current or accumulated
earnings and profits or in its pool of foreign Taxes for U.S. federal Income
Tax purposes, or (iii) any other material adverse Tax effect on Buyer or
any of its Affiliates


 


82

















 


resulting
from such action (any such increase in Taxes, “Buyer CFC Taxes”), then Seller
shall be responsible for the portion of such Buyer CFC Taxes specified in Section 8.01(f).


 


ARTICLE 9

EMPLOYEE BENEFITS


 


Section 9.01.  U.S. Business
Employees and Employee Benefits.  (a) 
Transfer and Terms and Conditions of
Employment.  Within a
reasonable period of time prior to the Closing Date, Buyer or an Affiliate of
Buyer shall offer employment to each U.S. Business Employee, commencing as of
the Closing Date (or, with respect to any U.S. Business Employee not actively
at work as of the Closing Date, as of the date that such U.S. Business Employee
returns to active employment; provided
that such U.S. Business Employee returns to active employment within six months
following the Closing Date), in the same job or position, at the same location
(or within 50 miles of such location) and at the same (or a higher) rate of
base salary, wages or other base compensation, in each case as in effect
immediately prior to the Closing Date. 
For clarity, (i) “rate of base salary, wages or other base
compensation” for this purpose and for the purposes of Section 9.02, Section 9.03
and Section 9.04 shall exclude commissions, variable pay, target bonus,
incentive compensation (including equity incentives), premium pay, overtime,
shift differentials, perquisites, retirement, welfare or other benefits,
retention amounts, change in control amounts and any similar payments and (ii) Buyer
shall have no obligation to employ a U.S. Business Employee who is not actively
at work as of the Closing Date and who does not return to active employment
within six months following the Closing Date. 
Buyer, at the time such employment offers are so extended, shall provide
to Seller appropriate information regarding employment terms and conditions
offered to the U.S. Business Employees, which shall conform in all respects to
the provisions of this Section 9.01. 
Buyer shall communicate with Seller prior to the extension of employment
offers with respect to communicating the offers to the U.S. Business
Employees.  Each U.S. Business Employee
who accepts such offer of employment and commences employment with Buyer or an
Affiliate of Buyer is referred to as a “Transferred
U.S. Employee,” and all such employees collectively are referred to
as the “Transferred U.S. Employees.”  For a period of at least 12 months following
the Closing Date, Buyer covenants and agrees to (or to cause its Affiliates to)
maintain compensation and benefits for the benefit of the Transferred U.S.
Employees that are, in the aggregate, not substantially less favorable, as
reasonably determined in good faith by Buyer, than the Benefit Plans as in
effect immediately prior to the Closing Date. 
For a period of at least 12 months following the Closing Date, Buyer
covenants and agrees that each Transferred U.S. Employee’s rate of base salary,
wages or other base compensation as in effect immediately prior to the Closing
Date shall not be reduced; provided that
this provision shall not preclude Buyer’s implementation of any reduced hours
arrangement, furlough program or similar arrangements to


 


83

















 


the
extent Transferred U.S. Employees are treated no less favorably than similarly
situated employees of Buyer and its Affiliates. Subject to the Transfer
Regulations (to the extent relevant), no provision in this Agreement shall (i) give
any Transferred U.S. Employee any right to continued employment with Buyer or
impair in any way the right of Buyer or an Affiliate of Buyer to terminate or
change the terms of the employment (other than the rate of base salary, wages
or other base compensation as provided above) of any employee, including any
Transferred U.S. Employee, after the Closing Date or (ii) preclude Buyer
or an Affiliate of Buyer from altering, amending or terminating any of its
employee benefit plans (including any Assumed Plan), or the participation of
any of its employees in such plans, at any time.  Effective as of the Closing, Seller or its
applicable Affiliate shall terminate the employment of all U.S. Business
Employees actively at work as of immediately prior to the Closing.


 


(b)           COBRA.  Seller and its Affiliates shall be
solely responsible for compliance with the requirements of Section 4980B
of the Code and part 6 of subtitle B of Title I of ERISA, or similar state
statutes (“COBRA”), including the
provision of continuation coverage, with respect to all Former Employees and
all Business Employees who do not become Transferred U.S. Employees, and, in
each case, their spouses and dependents, and with respect to Transferred U.S.
Employees, and their spouses and dependents, for whom a qualifying event occurs
on or prior to the date they become Transferred U.S. Employees.  Buyer and its Affiliates shall be solely
responsible for compliance with the requirements of COBRA with respect to
qualifying events with respect to Transferred U.S. Employees, and their spouses
and dependents, that occur after the date such employees become Transferred
U.S. Employees.  For purposes of this Section 9.01(b),
the terms “continuation coverage” and “qualifying event” shall have the
meanings ascribed to them in COBRA.


 


(c)           Severance.  Without limiting the generality of
the foregoing, Buyer shall, or shall cause its Affiliates to, have in effect
for at least 12 months following the Closing Date severance plans, practices
and policies applicable to each Transferred U.S. Employee that are not less
favorable in the aggregate, as reasonably determined by Buyer in good faith,
than such plans, practices and policies in effect immediately prior to the
Closing Date with respect to such Transferred U.S. Employee as identified on
Schedule 9.01(c).  For the avoidance of
doubt, Seller will be liable for (i) any retention, change in control,
bonus or other amount described in Section 2.04(f) (including the
employer portion of any payroll, social security, unemployment or similar
Taxes) and (ii) any severance Liabilities with respect to Former
Employees.


 


(d)           Assumed Compensation and Benefits.  From and after the Closing Date,
Buyer shall, or shall cause its Affiliates to, assume, honor and be solely
responsible for paying, providing and satisfying when due all Assumed
Compensation and Benefits for the benefit of Transferred U.S. Employees.


 


84

















 


(e)           Tax-Qualified Plans.  Each Transferred U.S. Employee who
is a participant in the Tyco Electronics Retirement Savings and Investment Plan
(the “Tyco Electronics Savings Plan”)
shall cease to be an active participant under such plan effective as of the
Closing Date.  Effective as of the
Closing Date, Buyer shall have, or shall cause its Affiliates to have, in
effect a defined contribution plan that is qualified under Section 401(a) of
the Code and that includes a qualified cash or deferred arrangement within the
meaning of Section 401(k) of the Code (the “Buyer Savings Plan”) in which Transferred
U.S. Employees who meet the eligibility criteria thereof shall be eligible to
participate.  Effective as of the Closing
Date, each Transferred U.S. Employee shall become fully vested in his or her
account balance in the Tyco Electronics Savings Plan.  Buyer agrees to cause the Buyer Savings Plan
to accept rollovers by Transferred U.S. Employees from the Tyco Electronics
Savings Plan, including promissory notes evidencing all outstanding loans.  Buyer agrees that it will be solely
responsible for amounts charged by the third-party administrator of the Tyco
Electronics Savings Plan and paid by Seller in connection with rollovers by
Transferred U.S. Employees from the Tyco Electronics Savings Plan to the Buyer
Savings Plan that exceed the amounts that would have been charged by the
third-party administrator of the Tyco Electronics Savings Plan and paid by
Seller had the accounts of Transferred U.S. Employees in the Tyco Electronics
Savings Plan been transferred to the Buyer Savings Plan in a mandatory
trust-to-trust transfer.  Seller agrees
that it will use good faith efforts to avoid or mitigate charges by the
third-party administrator of the Tyco Electronics Savings Plan in connection
with the rollovers contemplated by this Section 9.01(e), including
consulting with Buyer prior to authorizing such charges and permitting Buyer or
the third-party administrator of the Buyer Savings Plan to assume
responsibility for actions for which the third-party administrator of the Tyco
Electronics Savings Plan would asses charges, including drafting and sending
participant communications regarding the availability of such rollovers (which
communications shall be mutually acceptable in form and substance to both
Seller and Buyer).  Buyer agrees that it
will cause the third-party administrator of the Buyer Savings Plan to accept
any rollover contemplated pursuant to this Section 9.01(e) no later
than sixty days following the latest date that Buyer receives the documentation
from the Transferred U.S. Employee and the third-party administrator of the
Tyco Electronics Savings Plan necessary for the third-party administrator of
the Buyer Savings Plan to process such rollover.


 


(f)            Certain Welfare Plan Matters.  Effective as of the Closing Date,
Buyer shall maintain or cause its Affiliates to maintain a group health plan in
which Transferred U.S. Employees, and their respective spouses and dependents,
who meet the eligibility criteria thereof may participate.  Following the Closing Date, Buyer shall use,
or shall cause its Affiliates to use, its commercially reasonable efforts (i) to
ensure that no waiting periods, exclusions or limitations with respect to any
pre-existing conditions, evidence of insurability or good health or
actively-at-work exclusions are applicable to any Transferred U.S. Employees
covered by a welfare benefit plan maintained by Seller or its Affiliates
immediately prior to the Closing Date, or their dependents or beneficiaries,
under


 


85

















 


any
similar welfare benefit plans maintained by Buyer or its Affiliates in which
such Transferred U.S. Employees may be eligible to participate (except to the
extent that such a waiting period, exclusion or limitation was in effect and
had not been satisfied under the Benefit Plan in which such employee, dependent
or beneficiary was eligible to participate immediately prior to the Closing
Date, and without regard to any such waiting period, exclusion or limitation
that applies solely to employees who do not elect welfare benefit plan coverage
upon initial eligibility for the plan) and (ii) to provide that any costs
or expenses incurred by the Transferred U.S. Employees (and their respective
dependents and beneficiaries) under the Benefit Plans with respect to the plan
year that includes the Closing Date, up to (and including) the Closing Date,
shall be specifically applied for purposes of satisfying any similar
deductible, co-payment, coinsurance, maximum out-of-pocket provisions and like
adjustments or limitations on coverage under any such welfare benefit
plans.  Except as provided in Section 9.01(b),
Section 9.01(h) or Section 9.01(j), Buyer shall be responsible
under the employee welfare benefit plans of Buyer or an Affiliate of Buyer for
all amounts payable by reason of claims incurred by Transferred U.S. Employees
and their eligible dependents and beneficiaries after the date they become
Transferred U.S. Employees.


 


(g)           Cafeteria Plan.  Buyer shall have in effect, or
cause to be in effect, as of the Closing Date, flexible spending reimbursement
accounts under a cafeteria plan qualifying under Section 125 of the Code
(the “Buyer Cafeteria Plan”) in
which Transferred U.S. Employees who meet the eligibility criteria thereof may
participate.  As soon as practicable
following the Closing Date, Seller shall cause to be transferred to Buyer an
amount in cash equal to the excess of the aggregate accumulated contributions
to the flexible spending reimbursement accounts under the cafeteria plans in
which such Transferred U.S. Employees participate (the “Tyco Electronics Cafeteria Plan”) made
during the year in which the Closing Date occurs by the Transferred U.S.
Employees over the aggregate reimbursement payouts made for such year from such
accounts to such Transferred U.S. Employees. 
Buyer or an Affiliate of Buyer shall cause the balance of each
Transferred U.S. Employee’s accounts under the Tyco Electronics Cafeteria Plan
as of the Closing Date to be credited to the Transferred U.S. Employee’s
corresponding accounts under the Buyer Cafeteria Plan in which such employees
participate following the Closing Date. 
On and after the Closing Date, Buyer shall assume and be solely
responsible for all claims for reimbursement by Transferred U.S. Employees,
whether incurred prior to, on or after the Closing Date, that have not been
paid in full as of the Closing Date, which claims shall be paid pursuant to and
under the terms of the Buyer Cafeteria Plan, and Buyer shall indemnify and hold
harmless Seller and its Affiliates from any and all claims by or with respect
to Transferred U.S. Employees for reimbursement under the Tyco Electronics Cafeteria
Plan that have not been paid in full as of the Closing Date.  Buyer agrees to cause the Buyer Cafeteria
Plan to honor and continue through the end of the calendar year in which the
Closing Date occurs the elections made by each Transferred U.S. Employee under
the Tyco Electronics Cafeteria Plan in


 


86

















 


respect
of the flexible spending reimbursement accounts that are in effect immediately
prior to the Closing Date.


 


(h)           Supplemental Life and Disability.  Seller shall be solely
responsible for supplemental life and disability (whether long-term or
short-term) coverage of Former Employees and Business Employees on short-term
disability immediately prior to the Closing Date who do not return to active employment
within six months following the Closing Date. 
Buyer shall be solely responsible for supplemental life and disability
(whether long-term or short-term) coverage of all Transferred U.S. Employees
after the date that such employees commence employment with Buyer and its
Affiliates, even if the incident or circumstance giving rise to such coverage
occurred prior to the Closing Date. 
Buyer shall be solely responsible for any Liabilities (calculated in the
manner set forth on Schedule 9.01(h)) with respect to short-term disability
coverage provided to any Transferred U.S. Employee on and after the Closing
Date but prior to his or her active employment with Buyer or an Affiliate of
Buyer; provided that such
Transferred U.S. Employee returns to active employment with Buyer or an
Affiliate of Buyer within six months following the Closing Date.


 


(i)            Credited Service.  With respect to each employee
benefit plan, policy or practice, including severance, vacation and paid
time-off plans, policies or practices, sponsored or maintained by Buyer or an
Affiliate of Buyer, Buyer or such Affiliate shall recognize, for all
Transferred U.S. Employees from and after the Closing Date, credit for all
service with Seller, its Affiliates and their respective predecessors, prior to
the Closing Date for all purposes (including eligibility to participate,
vesting credit, eligibility to commence benefits, benefit accrual (other than
under a defined benefit pension plan), early retirement subsidies and
severance); provided, that no service
credit shall be granted to the extent any duplication of benefits results.


 


(j)            Workers’ Compensation.  Seller shall retain the obligation
and Liability for any workers’ compensation, occupational disease or illness,
state or other disability or similar workers’ protection claims with respect to
each U.S. Business Employee reported prior to or on the Closing Date.  Buyer shall be responsible for any such claim
reported after the Closing Date even if the injury or illness giving rise to
such claim originates prior to or on the Closing Date.


 


Section 9.02.  Canadian
Business Employees.  Transfer and Terms and Conditions of Employment.  Buyer or an Affiliate of Buyer
shall offer employment effective as of the Closing Date to each Canadian
Business Employee, other than a Quebec Business Employee, at the same rate of
base salary, wages or other base compensation, and under reasonably comparable
employee benefits in the aggregate as are made available to such Canadian
Business Employee immediately before the Closing Date. With respect to any
Canadian Business Employee employed in the Province of Quebec (a “Quebec Business Employee”), Buyer or an
Affiliate of Buyer shall continue the employment of each Quebec Business
Employee at the same rate of base salary,


 


87

















 


wages
or other base compensation, and under reasonably comparable employee benefits
in the aggregate as are made available to such Quebec Business Employee
immediately before the Closing Date. Notwithstanding the foregoing, in respect
of any Canadian Business Employee who is on short-term disability, pregnancy or
parental leave, or other authorized leave of absence on the Closing Date, other
than a Quebec Business Employee, the terms of the offer made to any such
Canadian Business Employee by Buyer or an Affiliate of Buyer shall specify that
the offer is conditional upon the Canadian Business Employee’s return to active
employment, and the date on which such Canadian Business Employee returns to
active employment with Buyer or an Affiliate of Buyer shall be the effective
date of employment for the Canadian Business Employee.  Until such Canadian Business Employee accepts
Buyer’s or its Affiliate’s offer of employment, as applicable, and reports to
active employment (the date that such Canadian Business Employee reports to
active employment with Buyer or an Affiliate of Buyer being the “Canadian Deferred Hire Date”), he or she
shall remain in Seller’s or its Affiliate’s employ and continue to participate
in Seller’s or its Affiliate’s Benefit Plans and Seller or its Affiliate, as
applicable, shall retain all Liabilities in respect of such Canadian Business
Employee until the Canadian Deferred Hired Date. Each Canadian Business
Employee who accepts an offer of employment made pursuant to this Section 9.02
and commences employment with Buyer or an Affiliate of Buyer, or continues
employment with Buyer or an Affiliate of Buyer is referred to as a “Transferred Canadian Employee.”  For a period of at least 12 months following
the Closing Date, Buyer covenants and agrees that each Transferred Canadian
Employee’s rate of base salary, wages or other base compensation as in effect
immediately prior to the Closing Date shall not be reduced; provided that this provision shall not
preclude Buyer’s implementation of any reduced hours arrangement, furlough
program or similar arrangements in accordance with Applicable Law to the extent
Transferred Canadian Employees are treated no less favorably than similarly
situated employees of Buyer and its Affiliates. 
No provision in this Agreement shall (i) give any Transferred
Canadian Employee any right to continued employment with Buyer or an Affiliate
of Buyer or impair in any way the right of Buyer or an Affiliate of Buyer to
terminate or change the terms of the employment (other than the rate of base
salary, wages or other base compensation as provided above) of any employee,
including any Transferred Canadian Employee, after the Closing Date in
accordance with Applicable Law or (ii) preclude Buyer or an Affiliate of
Buyer from altering, amending or terminating any of its employee benefit plans
(including any Assumed Plan), or the participation of any of its employees in
such plans, at any time.


 


Section 9.03.  Irish
Business Employees.   Transfer and Terms and Conditions of Employment.  The parties hereto accept for the purposes of
this Agreement that the Transfer Regulations apply in Ireland.  With respect to any Irish Business Employee,
effective as of the Closing Date, Buyer or an Affiliate of Buyer shall take
over each Irish Business Employee on terms and conditions not less favorable on
an individual basis in the aggregate than the terms and conditions provided
immediately prior to the Closing Date, except as otherwise


 


88

















 


required
or sufficient to comply with Applicable Law (including the Transfer
Regulations).  For a period of at least
12 months following the Closing Date, and subject to Applicable Law (including
the Transfer Regulations) to the extent relevant, Buyer covenants and agrees
that each Irish Business Employee’s rate of base salary, wages or other base
compensation as in effect immediately prior to the Closing Date shall not be
reduced; provided that, subject
to Applicable Law (including the Transfer Regulations), this provision shall
not preclude Buyer’s implementation of any reduced hours arrangement, furlough
program or similar arrangements to the extent Irish Business Employees are
treated no less favorably then similarly situated employees of Buyer and its
Affiliates.  Subject to Applicable Law
(including the Transfer Regulations), no provision in this Agreement shall (i) give
any Irish Business Employee any right to continued employment with Buyer or an
Affiliate of Buyer or impair in any way the right of Buyer or an Affiliate of
Buyer to terminate or change the terms of the employment (other than the rate
of base salary, wages or other base compensation as provided above) of any
employee, including any Irish Business Employee, after the Closing Date or (ii) preclude
Buyer or an Affiliate of Buyer from altering, amending or terminating any of
its employee benefit plans (including any Assumed Plan), or the participation
of any of its employees in such plans, at any time.


 


Section 9.04.  Other
Business Employees.  Transfer
and Terms and Conditions of Employment.  With respect to any Business Employee who is
not a U.S. Business Employee, a Canadian Business Employee or an Irish Business
Employee (an “Other Business Employee”),
effective as of the Closing Date, Buyer or an Affiliate of Buyer shall offer
employment to or otherwise accept into employment each Other Business Employee
at the same rate of base salary, wages or other base compensation, and under
reasonably comparable employee benefits in the aggregate as are made available
to such individual immediately before the applicable Closing Date, save as
otherwise required or sufficient to comply with Applicable Law (including the
Transfer Regulations).  Notwithstanding
the foregoing, and subject to Applicable Law (including the Transfer
Regulations), in respect of any Other Business Employee who is on a short-term
disability, pregnancy, parental or other authorized leave of absence on the
Closing Date, the effective date of employment shall not be the Closing Date
but rather the terms of an offer made to any such Other Business Employee shall
specify that the offer is conditional upon the Other Business Employee
returning to active employment and the date on which such employee returns to
active employment with Buyer or an Affiliate of Buyer shall be the effective
date of employment.  Until such Other
Business Employee accepts Buyer or its Affiliate’s offer of employment, as
applicable, and reports to active employment (the date that such Other Business
Employee reports to active employment being the “Deferred Hire Date”), he or she shall remain in Seller’s or
its Affiliate’s employ and continue to participate in Seller’s or its
Affiliate’s Benefit Plans and Seller or its Affiliate, as applicable, shall
retain all Liabilities in respect of such Other Business Employee until the
Deferred Hire Date.  Each Other Business
Employee who accepts such offer of employment and commences employment with
Buyer or an Affiliate of Buyer or


 


89

















 


transfers
under the Transfer Regulations is referred to as a “Transferred Other Employee.” 
For a period of at least 12 months following the Closing Date, and
subject to Applicable Law (including the Transfer Regulations) to the extent
relevant, Buyer covenants and agrees that each Transferred Other Employee’s
rate of base salary, wages or other base compensation as in effect immediately
prior to the Closing Date shall not be reduced; provided that this provision
shall not preclude Buyer’s implementation of any reduced hours arrangement,
furlough program or similar arrangements to the extent Transferred Other
Employees are treated no less favorably then similarly situated employees of
Buyer and its Affiliates.  No provision
in this Agreement shall (i) give any Other Business Employee any right to
continued employment with Buyer or an Affiliate of Buyer or impair in any way
the right of Buyer or an Affiliate of Buyer to terminate or change the terms of
the employment (other than the rate of base salary, wages or other base
compensation as provided above) of any employee, including any Transferred
Other Employee, after the Closing Date or (ii) preclude Buyer or an
Affiliate of Buyer from altering, amending or terminating any of its employee
benefit plans (including any Assumed Plan), or the participation of any of its
employees in such plans, at any time.  To
the extent not prohibited by Applicable Law (including the Transfer
Regulations), Seller or its applicable Affiliate shall terminate the employment
of all Other Business Employees actively at work as of immediately prior to the
Closing.


 


Section 9.05.  Benefits
Obligations.  (a) Seller’s Obligations.  With respect to each Benefit Plan under which
benefits are provided to Canadian Business Employees and Irish Business
Employees, Seller and its Affiliates shall, on or prior to the Closing Date,
administer each such Benefit Plan in all material respects in accordance with
its terms and Applicable Law.  Seller shall
retain the obligation and Liability for any workers’ compensation, occupation
disease or illness or similar workers’ protection claims with respect to each
Canadian Business Employee and Irish Business Employee, reported on or prior to
the Closing Date.


 


(b)           Buyer’s Obligations.  With respect to each Transferred
Canadian Employee and each Irish Business Employee, Buyer shall recognize all
service with Seller or its Affiliates for purposes of those employee benefits
plans maintained or provided by the Buyer or an Affiliate of the Buyer in which
the Transferred Canadian Employees or the Irish Business Employees are enrolled
by Buyer after the Closing Date (other than a defined benefit pension plan), to
the extent the recognition of such service credit affects the provision of
benefits under such plans; provided that no service credit will be granted to
the extent that any duplication of benefits results.  Buyer shall use its commercially reasonable
efforts to arrange for the waiver of any waiting periods, exclusions or
limitations with respect to any pre-existing conditions, evidence of
insurability or good health or actively-at-work restrictions under any of its
or any Buyer Affiliate’s health and welfare plans in which Transferred Canadian
Employees or the Irish Business Employees (or each of their dependents or
beneficiaries) are or will be enrolled (except to the extent that such a
waiting period, exclusion or limitation was in


 


90

















 


effect
and was not satisfied under the Benefit Plan in which such employee, dependent
or beneficiary was eligible to participate immediately prior to the Closing
Date).  Buyer agrees to use its
commercially reasonable efforts to provide that any costs or expenses incurred
by the Transferred Canadian Employees and the Irish Business Employees (and
each of their respective dependents and beneficiaries) under the health and
welfare benefit plans in which the Transferred Canadian Employees and the Irish
Business Employees are enrolled with respect to the plan year that includes the
Closing Date, up to (and including) the Closing Date, shall be specifically
applied for purposes of satisfying any similar deductible, co-payment,
coinsurance, maximum out-of-pocket provisions and like adjustments or
limitations on coverage under any such health and welfare plans.  Buyer shall be responsible for all
obligations and Liability for any workers’ compensation, occupational disease
or illness or similar workers’ protection claims with respect to each
Transferred Canadian Employee and Irish Business Employee, reported after the
Closing Date, regardless of whether the events giving rise to such claims
occurred prior to, on or after the Closing Date.  Buyer and Seller hereby agree that on or
before, or as soon as reasonably practicable following, the Closing Date legal
responsibility for the Irish Benefit Plan shall be transferred to Buyer, or an
Affiliate of Buyer, and Seller and the Buyer hereby agree to do all such things
and execute all such documentation as is legally required to effect such a
transfer and in particular (i) the execution of deed of substitution of
principal employer of the Irish Benefit Plan to appoint the Buyer, or an
Affiliate of Buyer as the principal employer of the Irish Benefit Plan; (ii) (where
the Buyer deems this necessary) the removal of the existing trustees of the
Irish Benefit Plan to be replaced by such persons as the Buyer in its absolute
discretion shall decide; (iii) to make all necessary notifications to the
Irish Revenue Commissioners, the Pensions Board and the members of the Irish
Benefit Plan where appropriate; and (iv) the assignment of any relevant
insurance policies in respect of Irish Business Employees to Buyer or an
Affiliate of Buyer on or prior to the Closing Date.


 


Section 9.06.  Indemnity.  Seller shall indemnify and hold harmless
Buyer and its Affiliates from any and all Damages incurred on or after the
Closing Date as a result of, arising out of, or in connection with the Canadian
Business Employees, the Irish Business Employees and the Other Business
Employees before the Closing Date in respect of any breach of the information
and consultation provisions of any Applicable Law (including the Transfer
Regulations) by Seller or any Affiliate of Seller.  Buyer shall indemnify and hold harmless
Seller and its Affiliates from any and all Damages incurred on or after the
Closing Date as a result of, arising out of, or in connection with the Canadian
Business Employees, the Irish Business Employees and the Other Business
Employees before the Closing Date in respect of any breach of the information
and consultation provisions of any Applicable Law (including the Transfer
Regulations) by Buyer or any Affiliate of Buyer.  From and after the Closing Date, Buyer shall,
or shall cause its Affiliates to, honor, pay, perform and satisfy any and all
Liabilities, obligations and responsibilities to, or in respect of, any breach
of Applicable Law (including the Transfer Regulations) by Buyer or any
Affiliate


 


91

















 


arising
on or after the Closing Date with respect to the Canadian Business Employees,
the Irish Business Employees and Other Business Employees.  The indemnity provided in this Section 9.06
shall not duplicate any obligation of Seller or Buyer, as applicable, pursuant
to Article 11, and shall be governed by the provisions of such Article 11
to the extent applicable.


 


Section 9.07.  Transferred
Employees.  Each Transferred
U.S. Employee, Transferred Canadian Employee, Irish Business Employee and
Transferred Other Employee is referred to as a “Transferred Employee,” and all such employees collectively are
referred to as “Transferred Employees.”


 


Section 9.08.  Consultations.  Seller and the Affiliates of Seller shall
take all steps, on a timely basis, as are required by Applicable Law to notify,
consult with, or negotiate the effect, impact, terms or timing of the
transactions contemplated by this Agreement with each works council, union,
labor organization, employee representative group, employee, Person or
Governmental Authority prior to the Closing. 
Neither Seller nor any Affiliate of Seller shall inform, notify,
represent, imply or communicate in any way to any works council, union, labor
organization, employee representative group, employee, Person or Governmental
Authority that any particular Applicable Law applies or does not apply in
connection with the transactions contemplated by this Agreement, including the
Transfer Regulations or any other legislation dealing with the transfer by
operation of law of the employment of employees from one employer to another,
save where otherwise agreed by Seller and Buyer in writing that the Transfer
Regulations do apply.


 


Section 9.09.  Assistance
and Cooperation.  After the
Closing Date, Seller and Buyer shall reasonably cooperate (and shall cause
their respective Affiliates to reasonably cooperate) with each other and with
each other’s agents, including accounting firms and legal counsel, in
connection with any Legal Proceeding as a result of, in connection with or with
respect to Buyer’s assumption of Liabilities under Sections 2.03(e) through
2.03(g).


 


Section 9.10.  No Third
Party Beneficiaries.  Without
limiting the generality of Section 13.05, no provision of this Article shall
create any third party beneficiary or other rights in any employee or former
employee (including any beneficiary or dependent thereof) of Seller or of any
of its Affiliates in respect of continued employment (or resumed employment)
with either Buyer or the Business or any of their respective Affiliates and no
provision of this Article 9 shall create any such rights in any such
Persons in respect of any benefits that may be provided, directly or
indirectly, under any Benefit Plan or any plan or arrangement that may be
established by Buyer or any of its Affiliates. 
No provision of this Agreement shall constitute a limitation on rights
to amend, modify or terminate after the Closing Date any such plans or
arrangements of Buyer or any of its Affiliates, except with respect to the
period during which and the level at which compensation and benefits have been
agreed to be provided to Transferred Employees under this Article 9.


 


92

















 


Section 9.11.  Wage
Reporting.  Buyer and Seller
shall utilize, or cause their Affiliates to utilize, the standard procedure set
forth in Section 4 of Rev. Proc. 2004-53, with respect to United States
wage reporting.


 


ARTICLE 10

CONDITIONS TO CLOSING


 


Section 10.01.  Conditions to
Obligations of Buyer and Seller. 
The obligations of Buyer and Seller to consummate the Closing are
subject to the satisfaction (or waiver, to the extent waiver of such condition
is permitted by law, by both Buyer and Seller) of the following conditions:


 


(a)           Any applicable waiting period under
the HSR Act or other applicable waiting period (or any extension thereof),
filings or approvals under any other applicable Antitrust Laws or regulations
relating to the transactions contemplated hereby shall have expired, been
terminated or been obtained.


 


(b)           No Applicable Law shall restrain,
enjoin or otherwise prohibit the Closing.


 


(c)           The Governmental Authority consents
and approvals set forth in Schedule 10.01(c) shall have been obtained.


 


Section 10.02.  Conditions to
Obligation of Buyer.  The
obligation of Buyer to consummate the Closing is subject to the satisfaction
(or waiver, to the extent waiver of such condition is permitted by law, by
Buyer) of the following further conditions:


 


(a)           (i) Seller shall have performed
in all material respects all of its material obligations hereunder required to
be performed by it on or prior to the Closing Date, (ii) the
representations and warranties of Seller contained in this Agreement shall be
true and correct on and as of the Closing Date as if made on and as of such
date (other than those made on and as of a specified date, which shall be true
and correct on and as of such specified date), without giving effect to any
materiality, Material Adverse Effect or similar qualifiers contained in such
representations and warranties (other than those qualifiers specified on
Schedule 10.02(a)(ii) hereto), except for such failures to be true and
correct as has not and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect and (iii) Buyer shall have
received a certificate signed by an authorized officer of Seller to the
foregoing effect.


 


(b)           Since the date of this Agreement,
there shall not have occurred any change, event, circumstance or development
that has had, or would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.


 


93














 


Section 10.03.  Conditions to
Obligation of Seller.  The
obligation of Seller to consummate the Closing is subject to the satisfaction
(or waiver, to the extent waiver of such condition is permitted by law, by
Seller) of the following further conditions:


 


(a)           (i) Buyer shall have performed
in all material respects all of its material obligations hereunder required to
be performed by it at or prior to the Closing Date, (ii) the
representations and warranties of Buyer contained in this Agreement shall be
true and correct on and as of the Closing Date as if made on and as of such
date (other than those made on and as of a specified date, which shall be true
and correct on and as of such specified date), without giving effect to any
materiality, material adverse effect or similar qualifiers contained in such
representations and warranties, except for such failures to be true and correct
as has not and would not reasonably be expected to have a material adverse
effect on the ability of Buyer to consummate the transactions contemplated by
this Agreement, and (iii) Seller shall have received a certificate signed
by an authorized officer of Buyer to the foregoing effect.


 


Section 10.04.  Frustration
of Closing Conditions.  None
of Buyer or Seller may rely on the failure of any condition set forth in this Article 10
to be satisfied if such failure was caused by such party’s failure to act in
good faith or such party’s failure to use its reasonable best efforts to cause
the Closing to occur as required by Section 7.01 or such party’s failure
to comply with its obligations under any other provision of this Agreement.


 


ARTICLE 11

SURVIVAL; INDEMNIFICATION


 


Section 11.01. 
Survival.  The
representations and warranties of the parties hereto contained in this
Agreement or in any certificate or other writing delivered pursuant hereto or
in connection herewith shall survive the Closing until the date which is
eighteen (18) months following the Closing Date; provided that (i) the representations and warranties in
Sections 3.02 (Corporate Authorization; Binding Effect), 3.04 (Subsidiary
Capital Structure), 3.16 (Finders’ Fees), 4.02 (Corporate Authorization;
Binding Effect) and 4.08 (Finders’ Fees) shall survive the Closing
indefinitely; (ii) the representations and warranties in Section 3.14(d) (Transfer
of Seller’s Intellectual Property Rights) and Section 3.19 (Environmental
Compliance) shall survive the Closing until the fifth anniversary of the
Closing Date; and (iii) the representations and warranties in Section 3.17
(Personnel), to the extent such representations and warranties cover Assumed
Plans, shall survive the Closing until the seventh anniversary of the Closing
Date.  The covenants and agreements of
the parties hereto contained in this Agreement or in any certificate or other
writing delivered pursuant hereto or in connection herewith shall survive the
Closing in accordance with their terms, provided
that any covenant or agreement as to which no survival period is explicitly
specified shall survive the Closing indefinitely or until the latest date
permitted by law.  Notwithstanding the


 


94

















 


preceding
sentence, any breach of covenant, agreement, representation or warranty in
respect of which indemnity may be sought under this Agreement shall survive the
time at which it would otherwise terminate pursuant to the preceding sentence,
if notice of the breach or inaccuracy thereof giving rise to such right of
indemnity shall have been given to the party against whom such indemnity may be
sought prior to such time.


 


Section 11.02. 
Indemnification by Seller.  (a) 
Subject to the other provisions of this Article 11, effective at or after
the Closing, Seller shall indemnify Buyer and its Affiliates (including the
Subsidiary) and their respective successors and assigns (the “Buyer Indemnitees”) against, and Seller
hereby agrees to hold each of them harmless from any and all damage, loss,
Liability and expense (including reasonable expenses of investigation and
reasonable attorneys’ fees and expenses in connection with any Legal Proceeding
whether involving a third-party claim or a claim solely between the parties
hereto) (“Damages”) incurred or
suffered by any Buyer Indemnitee or any of their respective successors and
assigns arising out of:


 


(i)            any
inaccuracy in, misrepresentation or breach of warranty (each such inaccuracy
in, misrepresentation and breach of warranty, a “Warranty Breach”) made by Seller pursuant to this Agreement (provided that  the determination of whether there has been any inaccuracy,
misrepresentation or breach, and the calculation of Damages, shall be made
without giving effect to any materiality, Material Adverse Effect or similar
qualifiers contained therein other than those qualifiers specified on Schedule
10.02(a)(ii) hereto);


 


(ii)           any
breach of covenant or agreement made or to be performed by Seller pursuant to
this Agreement (other than covenants contained in Article 8, which are
addressed by Article 8 exclusively);


 


(iii)          the
matters set forth on Schedule 3.14(c) (the “Disclosed Claims”) to the extent any Disclosed Claim results
in any inaccuracy in, misrepresentation or breach of Seller’s warranties set
forth in Section 3.14 (other than any such warranties set forth in the
second sentence of Section 3.14(c));


 


(iv)          any
Seller Shared Program Costs;


 


(v)           any
Excluded Liability; or


 


(vi)          any
Liability of Seller or its Affiliates (including the Subsidiary) to the extent
that it is not a Liability arising out of or relating to the Business (as
currently or formerly conducted), the Purchased Assets or the Real Property;


 


regardless
of whether such Damages arise as a result of the negligence, strict liability
or any other liability under any theory of law or equity of, or violation of


 


95

















 


any
Applicable Law by, Buyer; provided that
with respect to a claim for indemnification pursuant to (x) Section 11.02(a)(i) (other
than a Warranty Breach of Sections 3.02 (Corporate Authorization; Binding
Effect), 3.04 (Subsidiary Capital Structure) and 3.16 (Finders’ Fees), for
which the following limitations will not apply), (y) Section 11.02(a)(iii) or
(z) Section 11.02(a)(iv): (A) Seller shall not be liable for any
individual item where the Damages relating thereto are less than $15,000; provided that any claims arising out of
the same occurrence, transaction or event or series of related occurrences,
transactions or events (including similar occurrences, transactions or events
at multiple Real Property locations) will be treated as a single claim for
determining whether the threshold set forth in this clause (A) has been
met; (B) Seller shall not be liable unless the aggregate amount of Damages
with respect to all such indemnification claims not disallowed pursuant to
clause (A), together with any Other Consent Costs for which Buyer has
reimbursed Seller pursuant to Section 2.05, exceeds 1.25% of the Purchase
Price and then only to the extent of such excess; and (C) Seller’s maximum
Liability for all such indemnification claims shall not exceed 17.5% of the
Purchase Price.


 


(b)           Notwithstanding anything in this
Agreement to the contrary, the aggregate liability of Seller under this
Agreement with respect to Damages to Buyer Indemnitees for indemnification
under this Section 11.02 (other than under Section 11.02(a)(v) and
Section 11.02(a)(vi) for which the following limitation shall not
apply) shall not be in excess of the total amount of the Purchase Price.


 


Section 11.03. 
Indemnification by Buyer.  Subject
to the other provisions of this Article 11, effective at and after the
Closing, Buyer shall indemnify Seller, its Affiliates and their respective
successors and assigns against and Buyer hereby agrees to hold each of them
harmless from any and all Damages incurred or suffered by Seller, or any of its
Affiliates or Representatives or any of their respective successors and assigns
arising out of:


 


(a)           any Warranty Breach made by Buyer
pursuant to this Agreement (without giving effect to any materiality, Material
Adverse Effect or similar qualifiers contained therein);


 


(b)           any or breach of covenant or
agreement made or to be performed by Buyer pursuant to this Agreement (other
than covenants contained in Article 8, which are addressed by Article 8
exclusively);


 


(c)           any Assumed Liability; or


 


(d)           operation of the Business or use of
the Purchased Assets or Real Property by Buyer or its Affiliates after the
Closing Date; provided that in
each case of subsections (a) to (d), Seller or its Affiliates or
Representatives will not be entitled to recover Damages for any matter to the
extent that a Buyer Indemnitee is entitled to Damages arising out of such
matter pursuant to Section 11.02;


 


96

















 


regardless
of whether such Damages arise as a result of the negligence, strict liability
or any other liability under any theory of law or equity of, or violation of
any Applicable Law by, Seller; provided that
with respect to a claim for indemnification pursuant to Section 11.03(a) (other
than Warranty Breaches of Sections 4.02 (Corporate Authorization; Binding
Effect) and 4.08 (Finders’ Fees), for which the following limitations will not
apply), (a) Buyer shall not be liable for any individual item where the
Damages relating thereto are less than $15,000; provided that any claims arising out of the same occurrence,
transaction or event or series of related occurrences, transactions or events
will be treated as a single claim for determining whether the threshold set
forth in this clause (i) has been met; (b) Buyer shall not be liable
unless the aggregate amount of Damages with respect to all such indemnification
claims not disallowed pursuant to clause (i) exceeds 1.25% of the Purchase
Price and then only to the extent of such excess; and (c) Buyer’s maximum
Liability for all such indemnification claims shall not exceed 17.5% of the
Purchase Price.


 


Section 11.04.  Damages Net
of Insurance, Etc.  The amount
of any Damages for which indemnification is provided under Section 8.06,
11.02 or 11.03 shall be net of (i) any amounts recovered by the
Indemnified Party pursuant to any indemnification by, or indemnification
agreement with, any third party, (ii) any insurance proceeds or other cash
receipts or sources of reimbursement actually received by the Indemnified Party
as an offset against such Damages (each Person named in clauses (i) and
(ii), a “Collateral Source”), net
of all costs and expenses actually incurred by the Indemnified Party in
connection with recovering such Damages from the Collateral Source, and (iii) an
amount equal to the present value of the net Tax benefit, if any, attributable
to such Damages.  The Indemnified Party
shall use commercially reasonable efforts to seek recovery from all Collateral
Sources; provided that
commercially reasonable efforts will not require the Indemnified Party to
pursue litigation against any insurance carrier, customer, supplier, employee,
officer, or Affiliate.  If the
amount to be netted hereunder in connection with a Collateral Source from any
payment required under Section 8.06, 11.02 or 11.03 is received by an
Indemnified Party after payment by the Indemnifying Party of any amount
otherwise required to be paid to an Indemnified Party pursuant to this Article 11,
the Indemnified Party shall pay to the Indemnifying Party (net of all costs and
expenses actually incurred by the Indemnified Party in connection with
recovering such Damages from the Collateral Source), as soon as reasonably
practical after the receipt from such Collateral Source of such payment, any
amount that the Indemnifying Party would not have had to pay pursuant to this Article 11
had such Collateral Source payment been received by the Indemnified Party prior
to or at the time of such indemnification payment by the Indemnifying Party.


 


Section 11.05.  Procedures;
Third Party Claims.  (a) 
The party seeking indemnification under Section 11.02, 11.03 or, with
respect to this subsection (a) only, 11.07 (the “Indemnified Party”) agrees to give notice
to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the
commencement of any Legal Proceeding in respect of which


 


97

















 


indemnity
may be sought under such Section promptly following any determination to
assert such a claim, or as soon as reasonably practical after receipt of notice
by the Indemnified Party of the assertion of such claim by a third party or the
commencement of any such Legal Proceeding; provided
that any failure or delay on the party of the Indemnified Party to
give such notice to the Indemnifying Party will not affect the Indemnified
Party’s right to recover on or under any such Legal Proceeding unless and to
the extent the Indemnifying Party is materially prejudiced by such failure or
delay.


 


(b)           The Indemnifying Party shall have the
right, but not the obligation, to conduct and control, through counsel of its
choosing, any Legal Proceeding brought by a third party (a “Third-Party Claim”); provided that the Indemnifying Party will
only be entitled to assume and conduct the defense of any Third Party Claim to
the extent that (i) the Third Party Claim does not primarily seek
non-monetary relief and (ii) prior to the commencement of such Third Party
Claim, the applicable cap on recovery by the Indemnified Party has not been
exceeded .  If the Indemnifying Party
elects to conduct and control any Third-Party Claim, it shall, within 30 days
of receipt of notice of such Third-Party Claim, notify the Indemnified Party of
its intent to do so.  If the Indemnifying
Party does not elect to conduct and control any Third Party Claim, the
Indemnified Party may conduct and control any Third-Party Claim and keep the
Indemnifying Party reasonably informed of the status of such Third-Party Claim.  The Indemnifying Party shall permit the
Indemnified Party to participate in, but not control, the defense of any such
Legal Proceeding which the Indemnifying Party has elected to assume the defense
of through counsel chosen by the Indemnified Party; provided, however,
that the fees and expenses of such counsel shall be borne by the Indemnified
Party.  If the Indemnifying Party elects
not to control or conduct the defense or prosecution of a Third-Party Claim,
the Indemnified Party shall nevertheless keep the Indemnifying Party reasonably
informed of the status of such Third-Party Claim, and the Indemnifying Party
nevertheless shall have the right to participate in the defense or prosecution
of any Third-Party Claim and, at its own expense, to employ counsel of its own
choosing for such purpose. 
Notwithstanding anything in this Section 11.05(b) to the
contrary, the Indemnifying Party shall not, without the prior written consent
of the Indemnified Party, which consent shall not be unreasonably withheld,
delayed or conditioned, settle or compromise any Third-Party Claim unless the
settlement or compromise involves only the payment of monetary damages for
which the Indemnifying Party is responsible under this Agreement.  Notwithstanding anything in this Section 11.05(b) to
the contrary, the Indemnified Party shall not, without the prior written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld, delayed or conditioned, settle or compromise any Third-Party Claim.


 


(c)           The parties shall cooperate in the defense
or prosecution of any Third-Party Claim, with such cooperation to include (i) the
retention and the provision of records and information that are reasonably
relevant to such Third-Party Claim and (ii) the making available of
employees on a mutually convenient


 


98

















 


basis
for providing additional information and explanation of any material provided
hereunder.


 


Section 11.06.  Calculation
of Damages.  Except with
respect to Damages payable to a third party in connection with a Third-Party
Claim, in no event shall any party or its Affiliates be liable under this Article 11
for any indirect, incidental, special or consequential damages or damages for
lost profits arising out of its performance or non-performance of any provision
of this Agreement regardless of the nature of the claim or whether such party
has been advised of the possibility of such damages.


 


Section 11.07.  Environmental
Indemnity for Transferred New York Tower Sites. 
Seller agrees that if any Buyer Indemnitee incurs or suffers
Damages relating to the Transferred New York Tower Sites (“Buyer Environmental Damages”) for which
Seller is reasonably likely to have a claim for indemnification pursuant to the
terms of Section 9.6 of the Com-Net Agreement (the “Com-Net Indemnity”), upon receipt of
written request of Buyer, Seller shall seek to assign to such Buyer Indemnitee
its rights to such Com-Net Indemnity with respect to such Buyer Environmental
Damages.  If Seller is able to assign such
rights, Seller shall have no further obligations with respect to such Buyer
Environmental Damages, except with respect to any such Buyer Environmental
Damages otherwise subject to indemnification under Section 11.02 or as
provided in the last sentence of this Section 11.07.  If Seller is not able to procure such
assignment, Seller agrees to directly pursue the Com-Net Indemnity with respect
to such Buyer Environmental Damages and Seller shall indemnify Buyer Indemnitee
for such Buyer Environmental Damages to the extent it received payment therefor
under the Com-Net Indemnity.   For the
avoidance of doubt, to the extent Buyer’s or Seller’s claim, as applicable,
under the Com-Net Indemnity is not successful with regard to any Buyer
Environmental Damages, then each of Buyer and Seller shall continue to have
whatever rights and obligations relating to such Buyer Environmental Damages it
would otherwise have pursuant to the terms of this Agreement.


 


Section 11.08.  Environmental
Procedures.  With respect to
any claims involving the investigation, remediation, removal, corrective
action, containment, monitoring or other response action relating to the
existence of environmental contamination, including claims made under Section 11.02(a)(i) with
respect to Section 3.19, under Section 11.02(a)(v) with respect
to  any Excluded Environmental
Liability, under Section 11.03(c) or (d) with respect to
environmental matters or under Section 11.07 (collectively, “Environmental Claims”), Buyer, Seller and
their respective Affiliates, as the case may be, shall act in a Commercially
Reasonable Manner.  Seller shall have no
obligation for any Damages arising out of any Environmental Claim to the extent
such Damages result from or are the consequence, in whole or in part, of any
intrusive sampling, testing or monitoring of soil or groundwater performed by
or on behalf of Buyer, any of its Affiliates or any of their respective
Representatives, unless (and only to the extent) such action is (a) required
by an Environmental Law, order, injunction,


 


99

















 


decree
or ruling of any Governmental Authority or a Permit in effect at the time such
action is taken; (b) subject to Section 11.05, reasonably necessary
in connection with the defense or resolution  of a Third-Party Claim; (c) reasonably necessary to investigate
conditions that indicate an imminent and substantial endangerment to human
health as reasonably determined by Buyer; (d) required pursuant to any
applicable Real Property Lease as in effect as of the Closing Date or, if less
restrictive, as amended thereafter; (e) reasonably necessary to obtain
financing or a mortgage, or in connection with a potential sale of any Real
Property or the Business; (f) conducted in connection with construction or
maintenance projects at any Real Property provided that such projects serve a
legitimate business purpose unrelated to conducting intrusive sampling, testing
or monitoring of the Environment for purposes of seeking indemnification
hereunder; or (g) conducted in connection with properly maintaining any
production or drinking water wells that are the responsibility of Buyer and
that exist at any Real Property on the Closing Date.  Buyer and Seller agree that, with respect to
any Environmental Claim arising out of a Release of any Hazardous Substance,
the issuance of a no further action letter or the equivalent indicia of
completion issued by any Governmental Authority having jurisdiction over
Releases or remediation (“NFA Letter”)
shall fully resolve any investigation, remediation, removal, corrective action,
containment, monitoring or other response obligation of Seller with respect to
such Environmental Claim and such Release; provided,
that this sentence shall not apply to the extent any Environmental Claim arising
out of a claim brought by any third party is not settled as a result of the
receipt of an NFA Letter; provided, further, that Seller may not invoke the
receipt of the NFA Letter as a reason to avoid fulfilling any remaining
obligations with respect to such Environmental Claim in the event (x) the
NFA Letter contains re-openers or other provisions that reserve the right of
the issuing Governmental Authority to require additional investigation,
remediation, removal, corrective action, containment, monitoring or other
response action with respect to Hazardous Substances (“Re-Opener”), (y) the Re-Opener is not
triggered through any action or omission of Buyer, its Affiliates or their
respective Representatives (other than any action described in clauses (a) through
(g) of this Section 11.08) and (z) in the case of any
Environmental Claim made under Section 11.02(a)(i), the Re-Opener is
triggered before the fifth anniversary of the NFA Letter.  In no event shall Seller be obligated to pay
any Damages arising out of any Environmental Claim to the extent such Damages
arise due to a change in the use of the relevant Real Property to any use other
than commercial or industrial use after the Closing Date.


 


Section 11.09.  Parent
Guarantee.  Immediately prior
to the occurrence of a Guarantee Trigger Event, Seller Parent, on behalf of
itself and its permitted successors and assigns, shall enter into a guarantee
in favor of Buyer and each Buyer Indemnitee in respect of each and every
covenant, agreement and other obligation in effect at such time of Seller
and/or any of its Affiliates and permitted assigns under this Agreement and
each other Transaction Document in substantially the form attached as Exhibit G
hereto.  For purposes of this Section 11.09,
a “Guarantee Trigger Event” means (a) Seller
ceasing to hold, directly or indirectly, substantially all of the ownership
interests in all of the material


 


100

















 


operating
subsidiaries that are material to Seller Parent’s consolidated financial
results taken as a whole and held, directly or indirectly, by Seller Parent, as
of the Closing Date (collectively, the “Operating
Subsidiaries”) or (b) the taking of any action by Seller Parent
that results in Seller Parent owning, directly or indirectly, any Operating
Subsidiaries other than through its ownership of its equity interest of Seller
(or in other words if Seller will cease to own directly or indirectly all of
the Operating Subsidiaries owned indirectly or directly by Seller Parent).


 


Section 11.10.  Exclusive
Remedy/Waiver.  The parties
acknowledge and agree that from and after the Closing, Article 8 and this Article 11
shall provide the exclusive remedy for any party for any type of claim for
which such party is indemnified pursuant to Article 8 or this Article 11.  In furtherance of the foregoing, the parties
hereby waive, effective upon the occurrence of the Closing, to the fullest
extent permitted by Applicable Law, any and all other rights, claims and causes
of action (including rights of contribution or other rights of recovery arising
out of or relating to any Environmental Law or any Hazardous Substance) for
breach of the representations, warranties and covenants contained in this
Agreement.  Notwithstanding anything to
the contrary contained herein, the foregoing shall not apply to any deliberate
breach of this Agreement by Buyer or Seller or to claims for specific
performance or injunctive relief or claims based on fraud.


 


ARTICLE 12

TERMINATION


 


Section 12.01.  Grounds for
Termination.  This Agreement
may be terminated at any time prior to the Closing:


 


(a)           by mutual written agreement of Seller
and Buyer;


 


(b)           by either Seller or Buyer if the
Closing shall not have been consummated on or before the nine-month anniversary
of the date hereof (unless the failure to consummate the Closing by such date
shall be due to the failure of the party seeking to terminate this Agreement to
have fulfilled any of its obligations under this Agreement);


 


(c)           by either Seller or Buyer if consummation
of the transactions contemplated hereby would violate any nonappealable final
order, decree or judgment of any Governmental Authority having competent
jurisdiction;


 


(d)           by Buyer if any of the
representations or warranties of Seller contained in this Agreement are
inaccurate or untrue to the extent that any such inaccuracy or untruth would
cause the failure of the condition set forth in Section 10.02(a)(ii) or
if Seller has failed to discharge and fulfill any of its covenants or
agreements contained in this Agreement to the extent that any such failure
would


 


101

















 


cause
the failure of the condition set forth in Section 10.02(a)(i), and, if
such inaccuracy or failure is capable of being cured, such inaccuracy or
failure has not been cured within 30 days after written notice of such failure,
inaccuracy or untruth has been given to Seller; or


 


(e)           by Seller if any of the
representations or warranties of Buyer contained in this Agreement are
inaccurate or untrue to the extent that any such inaccuracy or untruth would
cause the failure of the condition set forth in Section 10.03(a)(ii) or
if Buyer has failed to discharge and fulfill any of its covenants or agreements
contained in this Agreement to the extent that any such failure would cause the
failure of the condition set forth in Section 10.03(a)(i), and, if such
inaccuracy or failure is capable of being cured, such inaccuracy or failure has
not been cured within 30 days after written notice of such failure, inaccuracy
or untruth has been given to Buyer.


 


The
party desiring to terminate this Agreement pursuant to Sections 12.01(b) –
(e) shall give notice of such termination to the other party.


 


Section 12.02.  Effect of
Termination.  If this
Agreement is terminated as permitted by Section 12.01, such termination
shall be without liability of either party (or any stockholder or
Representative of such party) to the other party to this Agreement; provided that if such termination shall
result from the (i) willful failure of either party to fulfill a condition
to the performance of the obligations of the other party, (ii) failure to
perform a covenant of this Agreement or (iii) willful breach by either
party hereto of any representation or warranty contained herein, such party
shall be fully liable for any and all Damages incurred or suffered by the other
party as a result of such failure or breach. 
The provisions of Sections 6.01, 13.04, 13.06, 13.07, 13.08, 13.09, 13.10, 13.12, 13.13, 13.14, and
this Section 12.02  shall survive any termination hereof pursuant to Section 12.01.


 


ARTICLE 13

MISCELLANEOUS


 


Section 13.01.  Notices.  All notices, requests and other
communications to any party hereunder shall be in writing referencing this
Agreement (including facsimile transmission and transmission by electronic mail
confirmed simultaneously in writing) and shall be given,


 


if to
Buyer, to:


 


Harris
Corporation

1025 West NASA Blvd. 

Melbourne, Florida  32919

Attention:  Scott T. Mikuen, Vice
President, Associate General Counsel and Secretary


Facsimile
No.:  321-727-9616 

Email:  Scott.Mikuen@harris.com


 


102

















 


with a
copy (which shall not constitute notice) to:


 


Jones
Day

901 Lakeside Avenue

Cleveland, Ohio 44114

Attention:  Sanjiv K. Kapur

Facsimile No.: 216-579-0212

Email:  skapur@JonesDay.com


 


if to
Seller, to:


 


c/o
Tyco Electronics Ltd.

1050 Westlakes Drive

Berwyn, Pennsylvania  19312

Attention:  General Counsel

Facsimile No.:  (610) 893-9602

Email:  bob.scott@tycoelectronics.com


 


and


 


Tyco
Electronics Ltd.

21 Lowder Street

Dedham, Massachusetts  02026

Attention:  Jeanne Quirk

Facsimile No.:  (617) 848-0630

Email:  jquirk@tycoelectronics.com


 


with a
copy (which shall not constitute notice) to:


 


Davis
Polk & Wardwell

450 Lexington Avenue

New York, New York  10017

Attention:  William Aaronson, Esq.

Facsimile No.:  (212) 450-3397

Email:  william.aaronson@dpw.com


 


or such
other address or facsimile number (or electronic email address) as such party
may hereafter specify for the purpose by notice to the other parties
hereto.  All such notices, requests and
other communications shall be deemed received on the date of receipt by the
recipient thereof if received prior to 5:00 p.m. in the place of receipt
and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or other
communication shall be deemed not to have been received until the next
succeeding Business Day in the place of receipt.


 


103

















 


Section 13.02.  Amendments
and Waivers.  (a)  Any
provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment,
by each party to this Agreement, or in the case of a waiver, by the party
against whom the waiver is to be effective.


 


(b)           No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.  The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.


 


Section 13.03.  Disclosure
Schedule References.  The
parties hereto agree that any reference in a particular Section of the
Disclosure Schedule shall only be deemed to be an exception to (or, as
applicable, a disclosure for purposes of) (a) the representations and
warranties (or covenants, as applicable) of the relevant party that are
contained in the corresponding Section of this Agreement and (b) any
other representations and warranties of such party that is contained in this
Agreement, but only if the relevance of that reference as an exception to (or a
disclosure for purposes of) such representations and warranties would be
readily apparent to a reasonable person who has read that reference and such
representations and warranties, without any independent knowledge on the part
of the reader regarding the matter(s) so disclosed.


 


Section 13.04. 
Expenses.  Except as
otherwise provided herein, all costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.


 


Section 13.05.  Successors
and Assigns.  The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of each other party hereto. 
Notwithstanding the foregoing, Buyer may assign its right to receive all
or any portion of the Purchased Assets or delegate its obligation to pay all or
any portion of the Purchase Price to any of Buyer’s Affiliates; provided that such delegation will not
relieve Buyer of its obligations under this Agreement.


 


Section 13.06.  Governing
Law.  This Agreement shall be
governed by and construed in accordance with the law of the State of Delaware,
without regard to the conflicts of law rules of such state.


 


Section 13.07.  Jurisdiction.
 The parties hereto agree
that, except as set forth in Article 2 or Article 8, any Legal
Proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby shall be brought in the United States District Court for the District of
Delaware or any Delaware State court


 


104

















 


sitting
in Delaware, so long as one of such courts shall have subject matter
jurisdiction over such Legal Proceeding, and that any cause of action arising
out of this Agreement shall be deemed to have arisen from a transaction of
business in the State of Delaware, and each of the parties hereby irrevocably
consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such Legal Proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter
have to jurisdiction or the laying of the venue of any such Legal Proceeding in
any such court and any objection that it may now or hereafter have that any
such Legal Proceeding brought in any such court has been brought in an inconvenient
forum.  Process in any such Legal
Proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. 
Process in any such Legal Proceeding may be served on any party anywhere
in the world, whether within or without the jurisdiction of any such
court.  Seller and its Affiliates agree
that final judgment, including any appeals, in any such Legal Proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner permitted by Applicable Law.  To the extent that Seller or its Affiliates
have or hereafter may acquire any immunity from the jurisdiction of any court
or from any legal process (whether through service or notice, attachment prior
to judgment, attachment in aid of execution, or otherwise) with respect to
Seller or its Affiliates or their property, Seller and its Affiliates hereby
irrevocably waive such immunity in respect of their obligations under this
Agreement.  Without limiting the foregoing,
each party agrees that service of process on such party as provided in Section 13.01
shall be deemed effective service of process on such party.  Nothing contained in this Agreement shall
affect either party’s right to serve legal process in any other manner
permitted by Applicable Law.


 


Section 13.08.  WAIVER OF
JURY TRIAL.  EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 13.09.  Counterparts;
Effectiveness; Third Party Beneficiaries. 
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.  This Agreement shall become effective when
each party hereto shall have received a counterpart hereof signed by all of the
other parties hereto.  Until and unless
each party has received a counterpart hereof signed by the other party hereto,
this Agreement shall have no effect and no party shall have any right or
obligation hereunder (whether by virtue of any other oral or written agreement
or other communication).  Except as
provided for in Article 11, no provision of this Agreement is intended to
confer any rights, benefits, remedies, obligations or liabilities hereunder
upon any Person other than the parties hereto and their respective successors
and assigns.


 


105

















 


Section 13.10.  Entire
Agreement.  This Agreement and
the other Transaction Documents constitute the entire agreement between the
parties with respect to the subject matter hereof and thereof and supersede all
prior agreements and understandings, both oral and written, between the parties
with respect to the subject matter hereof and thereof.


 


Section 13.11.  Bulk Sales
Laws.  Buyer and Seller each
hereby waive compliance by Seller with the provisions of the “bulk sales,”
“bulk transfer” or similar laws of any state.


 


Section 13.12.  No Strict
Construction.  The parties
have participated jointly in the negotiation and drafting of this
Agreement.  In the event any ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by all parties and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of
any provision of this Agreement.


 


Section 13.13.  Severability.  If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party.  Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.


 


Section 13.14.  Specific
Performance.  The parties
hereto agree that irreparable damage would occur if any provision of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement or to enforce specifically the performance of the terms and
provisions hereof in the United States District Court for the District of
Delaware or any Delaware State court sitting in Delaware, in addition to any
other remedy to which they are entitled at law or in equity.


 


Section 13.15.  Payment in
U.S. Dollars.  All amounts to
be paid to under this Agreement, or any order, judgment, assessment, award,
ruling, charge, decree or writ entered by any Governmental Authority in any Legal
Proceeding brought under, arising out of or with respect to this Agreement or
any other Transaction Document shall be paid in the United States in U.S.
Dollars by wire transfer of immediately available funds.  To the extent payment is not legally possible
in U.S. Dollars and payment is required to be paid in any other currency,
Seller shall make sufficient payment in such other currency such that Buyer
shall receive after conversion of such funds into U.S. Dollars the amount of
U.S. Dollars required to


 


106

















 


be paid
and received under this  Agreement plus
any costs incurred by Buyer in converting such foreign currency into U.S.
Dollars.  To the extent Seller is
required to deduct, withhold or retain any amounts under any Applicable Law
with respect to any payments under this Agreement because payments are being
made from outside of the United States, Seller shall be required to pay such
additional amounts to Buyer such that after any such deduction, withholding or
retention required by Applicable Law, Buyer receives the amounts in U.S.
Dollars specified in this Agreement.


 


107

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.


 


	
   

  	
  HARRIS
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gary L. McArthur

  
	
   

  	
   

  	
  Name:

  	
  Gary
  L. McArthur

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TYCO
  ELECTRONICS GROUP S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Terrence R. Curtin

  
	
   

  	
   

  	
  Name:

  	
  Terrence
  R. Curtin

  
	
   

  	
   

  	
  Title:

  	
  EVP/CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TYCO
  ELECTRONICS LTD. (solely for the limited

  
	
   

  	
  purposes
  of Section 11.09)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Terrence R. Curtin

  
	
   

  	
   

  	
  Name:

  	
  Terrence
  R. Curtin

  
	
   

  	
   

  	
  Title:

  	
  EVP/CFO