Exhibit 10.1


 


EXECUTION COPY


 


PURCHASE AND SALE AGREEMENT


 


 


BY AND AMONG


 


 


ANDREW
CORPORATION,


ANDREW CANADA
INC.,


ANDREW LIMITED,


ANDREW HOLDINGS
(GERMANY) GMBH


 


AND


 


ASC SIGNAL
CORPORATION


 


 


DATED
AS OF NOVEMBER 5, 2007


 


 


SALE OF


 


ANDREW SATELLITE


COMMUNICATIONS GROUP


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.1

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  1.2

  	
   

  	
  Interpretation

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
  PURCHASE AND SALE; ASSUMPTION OF
  ASSUMED OBLIGATIONS

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Purchase and Sale of
  Assets

  	
   

  	
  17

  
	
  2.2

  	
   

  	
  Purchase and Sale of
  Transferred Shares

  	
   

  	
  19

  
	
  2.3

  	
   

  	
  Assignment of Permits
  and Contracts

  	
   

  	
  19

  
	
  2.4

  	
   

  	
  Certain Provisions
  Regarding Assignments

  	
   

  	
  20

  
	
  2.5

  	
   

  	
  Excluded Assets

  	
   

  	
  22

  
	
  2.6

  	
   

  	
  Assumed Obligations

  	
   

  	
  23

  
	
  2.7

  	
   

  	
  Retained Obligations

  	
   

  	
  24

  
	
  2.8

  	
   

  	
  Prorations

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  PURCHASE PRICE; ADJUSTMENT;
  ALLOCATION

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Payment of Purchase
  Price

  	
   

  	
  25

  
	
  3.2

  	
   

  	
  Purchase Price
  Adjustment

  	
   

  	
  27

  
	
  3.3

  	
   

  	
  Allocation of
  Consideration for Assets and Transferred Shares

  	
   

  	
  29

  
	
  3.4

  	
   

  	
  Earnout Payment

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  REPRESENTATIONS AND WARRANTIES
  OF THE SELLERS

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.1

  	
   

  	
  Due Organization;
  Capitalization of Skyware

  	
   

  	
  33

  
	
  4.2

  	
   

  	
  No Conflict; Due
  Authorization

  	
   

  	
  33

  
	
  4.3

  	
   

  	
  Consents and Approvals;
  Authority Relative to this Agreement

  	
   

  	
  33

  
	
  4.4

  	
   

  	
  Financial Statements

  	
   

  	
  34

  
	
  4.5

  	
   

  	
  No Adverse Effects or
  Changes

  	
   

  	
  35

  
	
  4.6

  	
   

  	
  Title to Assets and
  Transferred Shares

  	
   

  	
  35

  
	
  4.7

  	
   

  	
  Owned Real Property and
  Leased Real Property

  	
   

  	
  35

  
	
  4.8

  	
   

  	
  Equipment; Leased
  Personal Property

  	
   

  	
  37

  
	
  4.9

  	
   

  	
  Customers and Suppliers

  	
   

  	
  37

  
	
  4.10

  	
   

  	
  Proceedings

  	
   

  	
  37

  
	
  4.11

  	
   

  	
  Intellectual Property

  	
   

  	
  37

  



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.12

  	
   

  	
  Contracts

  	
   

  	
  39

  
	
  4.13

  	
   

  	
  Permits

  	
   

  	
  41

  
	
  4.14

  	
   

  	
  Employee Benefit Plans

  	
   

  	
  41

  
	
  4.15

  	
   

  	
  Employment and Labor
  Matters

  	
   

  	
  43

  
	
  4.16

  	
   

  	
  Taxes

  	
   

  	
  43

  
	
  4.17

  	
   

  	
  Environmental Matters

  	
   

  	
  44

  
	
  4.18

  	
   

  	
  Inventories

  	
   

  	
  45

  
	
  4.19

  	
   

  	
  Related Party
  Transactions

  	
   

  	
  45

  
	
  4.20

  	
   

  	
  Product Liability

  	
   

  	
  46

  
	
  4.21

  	
   

  	
  Indebtedness

  	
   

  	
  46

  
	
  4.22

  	
   

  	
  Canadian Income Tax Act

  	
   

  	
  46

  
	
  4.23

  	
   

  	
  Andrew Canada Inc

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
  REPRESENTATIONS AND WARRANTIES
  OF THE PURCHASER

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  Due Incorporation

  	
   

  	
  46

  
	
  5.2

  	
   

  	
  Due Authorization

  	
   

  	
  46

  
	
  5.3

  	
   

  	
  Consents and Approvals;
  Authority Relative to This Agreement

  	
   

  	
  47

  
	
  5.4

  	
   

  	
  Proceedings

  	
   

  	
  47

  
	
  5.5

  	
   

  	
  Financing

  	
   

  	
  47

  
	
  5.6

  	
   

  	
  Independent
  Investigation

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
  COVENANTS

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.1

  	
   

  	
  Access to Information

  	
   

  	
  48

  
	
  6.2

  	
   

  	
  Preservation of
  Business

  	
   

  	
  48

  
	
  6.3

  	
   

  	
  Consents and Approvals

  	
   

  	
  50

  
	
  6.4

  	
   

  	
  Garner Facility
  Sublease

  	
   

  	
  51

  
	
  6.5

  	
   

  	
  Brokers

  	
   

  	
  52

  
	
  6.6

  	
   

  	
  Preservation of Books
  and Records; Access and Assistance

  	
   

  	
  52

  
	
  6.7

  	
   

  	
  Insurance

  	
   

  	
  53

  
	
  6.8

  	
   

  	
  Confidentiality

  	
   

  	
  53

  
	
  6.9

  	
   

  	
  Guarantees

  	
   

  	
  55

  
	
  6.10

  	
   

  	
  Taxes

  	
   

  	
  55

  



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.11

  	
   

  	
  Agreement Not to
  Compete

  	
   

  	
  58

  
	
  6.12

  	
   

  	
  Payment of
  Related-Party Indebtedness

  	
   

  	
  61

  
	
  6.13

  	
   

  	
  Payment of Other
  Skyware Indebtedness

  	
   

  	
  61

  
	
  6.14

  	
   

  	
  Deferred Transaction

  	
   

  	
  61

  
	
  6.15

  	
   

  	
  Transferred
  Intellectual Property on Record

  	
   

  	
  61

  
	
  6.16

  	
   

  	
  Registration of
  Transferred Owned Property

  	
   

  	
  62

  
	
  6.17

  	
   

  	
  Spin Lathe

  	
   

  	
  62

  
	
  6.18

  	
   

  	
  Financing

  	
   

  	
  62

  
	
  6.19

  	
   

  	
  Smithfield Lease

  	
   

  	
  62

  
	
  6.20

  	
   

  	
  Payments Regarding
  Transferred Owned Real Property in Canada

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
  CONDITIONS PRECEDENT TO
  OBLIGATIONS OF THE PURCHASER

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.1

  	
   

  	
  Representations and
  Warranties

  	
   

  	
  64

  
	
  7.2

  	
   

  	
  Compliance with
  Agreements and Covenants

  	
   

  	
  64

  
	
  7.3

  	
   

  	
  Certificate of
  Compliance

  	
   

  	
  64

  
	
  7.4

  	
   

  	
  No Injunctions or Other
  Legal Restraints

  	
   

  	
  64

  
	
  7.5

  	
   

  	
  Absence of Proceedings

  	
   

  	
  64

  
	
  7.6

  	
   

  	
  Related Agreements

  	
   

  	
  65

  
	
  7.7

  	
   

  	
  Release of Liens

  	
   

  	
  65

  
	
  7.8

  	
   

  	
  Title Policies

  	
   

  	
  65

  
	
  7.9

  	
   

  	
  Material Adverse Effect

  	
   

  	
  65

  
	
  7.10

  	
   

  	
  Lender Documents

  	
   

  	
  65

  
	
  7.11

  	
   

  	
  Other Closing
  Deliveries

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
  CONDITIONS PRECEDENT TO
  OBLIGATIONS OF THE SELLERS

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.1

  	
   

  	
  Representations and
  Warranties

  	
   

  	
  65

  
	
  8.2

  	
   

  	
  Compliance with
  Agreements and Covenants

  	
   

  	
  66

  
	
  8.3

  	
   

  	
  Certificate of
  Compliance

  	
   

  	
  66

  
	
  8.4

  	
   

  	
  No Injunctions or Other
  Legal Restraints

  	
   

  	
  66

  
	
  8.5

  	
   

  	
  Absence of Proceedings

  	
   

  	
  66

  
	
  8.6

  	
   

  	
  Related Agreements

  	
   

  	
  66

  



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.7

  	
   

  	
  Other Closing
  Deliveries

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
  CLOSING

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.1

  	
   

  	
  Closing

  	
   

  	
  66

  
	
  9.2

  	
   

  	
  Deliveries by the
  Sellers

  	
   

  	
  66

  
	
  9.3

  	
   

  	
  Deliveries by the
  Purchaser

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  	
  TERMINATION

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.1

  	
   

  	
  Termination

  	
   

  	
  68

  
	
  10.2

  	
   

  	
  Effect of Termination

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  	
  EMPLOYEES AND EMPLOYEE BENEFITS

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.1

  	
   

  	
  Offers of Employment to
  Current US Employees, Current Canadian Employees and Current Other Employees

  	
   

  	
  69

  
	
  11.2

  	
   

  	
  Seller Benefit Plans

  	
   

  	
  71

  
	
  11.3

  	
   

  	
  Service Credit

  	
   

  	
  71

  
	
  11.4

  	
   

  	
  Individual Agreements
  and Continuation of Benefits

  	
   

  	
  72

  
	
  11.5

  	
   

  	
  Accrued Salaries for
  Transferred US Employees and Transferred Canadian Employees

  	
   

  	
  72

  
	
  11.6

  	
   

  	
  Welfare Benefits

  	
   

  	
  72

  
	
  11.7

  	
   

  	
  PTO for Transferred US
  Employees

  	
   

  	
  73

  
	
  11.8

  	
   

  	
  Vacation for
  Transferred Canadian Employees

  	
   

  	
  73

  
	
  11.9

  	
   

  	
  Cafeteria Plan

  	
   

  	
  73

  
	
  11.10

  	
   

  	
  Savings Plans

  	
   

  	
  73

  
	
  11.11

  	
   

  	
  Workers Compensation

  	
   

  	
  74

  
	
  11.12

  	
   

  	
  WARN Act

  	
   

  	
  75

  
	
  11.13

  	
   

  	
  Severance

  	
   

  	
  75

  
	
  11.14

  	
   

  	
  Skyware Employees

  	
   

  	
  75

  
	
  11.15

  	
   

  	
  Transferred UK
  Employees

  	
   

  	
  76

  
	
  11.16

  	
   

  	
  Mutual Cooperation

  	
   

  	
  79

  
	
  11.17

  	
   

  	
  No Third Party
  Beneficiaries

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
   

  	
  INDEMNIFICATION

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.1

  	
   

  	
  Survival

  	
   

  	
  80

  
	
  12.2

  	
   

  	
  Indemnification by the
  Sellers

  	
   

  	
  80

  



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.3

  	
   

  	
  Indemnification by the
  Purchaser

  	
   

  	
  81

  
	
  12.4

  	
   

  	
  Limitations on
  Liability of the Sellers

  	
   

  	
  82

  
	
  12.5

  	
   

  	
  Claims

  	
   

  	
  83

  
	
  12.6

  	
   

  	
  Notice of Third Party
  Claims; Assumption of Defense

  	
   

  	
  84

  
	
  12.7

  	
   

  	
  Settlement or
  Compromise

  	
   

  	
  84

  
	
  12.8

  	
   

  	
  Time Limits

  	
   

  	
  84

  
	
  12.9

  	
   

  	
  Net Losses and
  Subrogation

  	
   

  	
  84

  
	
  12.10

  	
   

  	
  Purchase Price
  Adjustments

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.1

  	
   

  	
  Expenses

  	
   

  	
  85

  
	
  13.2

  	
   

  	
  Amendment

  	
   

  	
  85

  
	
  13.3

  	
   

  	
  Notices

  	
   

  	
  86

  
	
  13.4

  	
   

  	
  Payments in Dollars

  	
   

  	
  86

  
	
  13.5

  	
   

  	
  Waivers

  	
   

  	
  87

  
	
  13.6

  	
   

  	
  Assignment

  	
   

  	
  87

  
	
  13.7

  	
   

  	
  No Third Party
  Beneficiaries

  	
   

  	
  87

  
	
  13.8

  	
   

  	
  Publicity

  	
   

  	
  87

  
	
  13.9

  	
   

  	
  Further Assurances

  	
   

  	
  88

  
	
  13.10

  	
   

  	
  Severability

  	
   

  	
  88

  
	
  13.11

  	
   

  	
  Entire Understanding

  	
   

  	
  88

  
	
  13.12

  	
   

  	
  Language

  	
   

  	
  88

  
	
  13.13

  	
   

  	
  Applicable Law

  	
   

  	
  88

  
	
  13.14

  	
   

  	
  Remittances

  	
   

  	
  88

  
	
  13.15

  	
   

  	
  Bulk Sales

  	
   

  	
  88

  
	
  13.16

  	
   

  	
  Jurisdiction of
  Disputes; Waiver of Jury Trial

  	
   

  	
  88

  
	
  13.17

  	
   

  	
  Schedules

  	
   

  	
  89

  
	
  13.18

  	
   

  	
  Disclaimer of
  Warranties

  	
   

  	
  90

  
	
  13.19

  	
   

  	
  Counterparts

  	
   

  	
  90

  



 


v

















 


PURCHASE AND SALE AGREEMENT


 


THIS PURCHASE AND SALE AGREEMENT is made as of the 5th day of November,
2007, by and among ASC Signal Corporation, a corporation incorporated under the
laws of Delaware (the “Purchaser”), Andrew Corporation, a Delaware
corporation (“Andrew”), Andrew Canada Inc., Andrew Limited, Andrew Holdings
(Germany) GmbH, (each a “Seller”, and collectively with Andrew, the “Sellers”).
Certain capitalized terms used herein are defined in Article I.


 


W  I
T  N  E  S  S  E  T  H:


 


WHEREAS, the Purchaser desires to purchase from the Sellers, and the
Sellers desire to sell to the Purchaser, all of the capital stock of or other
ownership interests in Skyware (as defined below) and certain assets used in
the conduct of the Business (as defined below) by the Sellers, and the
Purchaser desires to assume from the Sellers, and the Sellers desire to assign
to the Purchaser, certain obligations and liabilities relating to the Business,
all upon the terms and subject to the conditions contained herein.


 


NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein contained, the
Purchaser and the Sellers hereby agree as follows:


 


ARTICLE I



DEFINITIONS


 


1.1                                 Definitions.
The following terms shall have the following meanings for the purposes of this
Agreement:


 


“Accounting Firm” shall have the meaning set forth in Section 3.2(c).


 


“Accounts Payable” shall mean obligations and liabilities with
respect to accounts payable of the Business as of the Closing.


 


“Accounts Receivable” shall mean all trade receivables (excluding
any receivables relating to any Benefit Plan that are assumed by the Purchaser
under Article XI) owned by the Sellers to the extent arising out of
or from the operation of the Business.


 


“Accrued Vacation Payment” shall have the meaning set forth in Section 11.8.


 


“Affiliate” shall mean, with respect to any specified Person,
any other Person which, directly or indirectly, controls, is under common
control with, or is controlled by, such specified Person. The term “control”
as used in the preceding sentence means, with respect to a corporation, the
right to exercise, directly or indirectly, more than twenty-five percent (25%)
of the voting rights attributable to the shares of such corporation, or with
respect to any Person other than a corporation, the possession, directly or
indirectly, of the power to direct or cause the


 

















 


direction of the management or policies of
such Person; provided, however, that PCT International, Inc.
shall not be considered an “Affiliate” of either Andrew or the Sellers.


 


“Agreement” shall mean this Purchase and Sale Agreement,
including all Exhibits and Schedules hereto, as it may be amended,
modified or supplemented from time to time in accordance with its terms.


 


“Allocation Schedule” shall have the meaning set forth in Section 3.3.


 


“Andrew” shall have the meaning set forth in the Preamble.


 


“Andrew DC Plan” shall have the meaning set forth in Section 11.10(b).


 


“Andrew DPSP” shall have the meaning set forth in Section 11.10(b).


 


“Andrew 401(k) Plan” shall have the meaning set forth in Section 11.10(a).


 


“Andrew Guarantee” shall mean any guarantee, indemnity,
performance bond, letter of credit, deposit or other security or contingent
obligation in the nature of a financial obligation, including letters of
comfort or support, entered into or granted by the Sellers or any Affiliate of
the Sellers in relation to or arising out of any obligations or liabilities of
the Sellers in connection with the Business.


 


“Andrew Name” shall mean the business name, brand name, trade
name, trademark, service mark, and domain name “Andrew,” any business
name, brand name, trade name, trademark, service mark and domain name that
includes the word “Andrew,” any portion thereof, any and all other
derivatives thereof and the Andrew logo.


 


“Appraisal Report” shall have the meaning set forth in Section 6.11(c)(ii).


 


“Appraised Value” means the fair market value of a Minor
Competing Business as finally determined in accordance with the provisions of Section 6.11(c)(ii).
The fair market value shall be determined on the basis of the entire enterprise
value of such Minor Competing Business, in a sale conducted by a nationally
recognized investment banking firm.


 


“Appraiser” means either the First Appraiser or Second
Appraiser; provided that, in each case, the Appraiser shall be an
individual or qualified representative of a firm that is independent of the
Purchaser, Andrew and the Sellers and their respective Affiliates, and that
regularly engages, as a primary occupation, in the professional appraisal of
businesses or business interests.


 


“Assets” shall mean the assets described in Section 2.1,
the Transferable Permits, the Purchased Contracts and the Deferred Transaction
Assets (to be delivered on the Deferred Transaction Date), but excluding the
Excluded Assets.


 


“Assignment and Assumption Agreement” shall mean the assignment
and assumption agreement substantially in the form set forth in Exhibit A.


 


2

















 


“Assumed Obligations” shall have the meaning set forth in Section 2.6.


 


“Balance Sheet Date” shall have the meaning set forth in Section 4.4(a).


 


“Benefit and Environmental Warranty” shall mean a representation
or warranty in Section 4.14 or 4.17.


 


“Benefit Plans” shall have the meaning set forth in Section 4.14(a).


 


“Bill of Sale” shall mean the bill of sale substantially in the form set
forth in Exhibit B.


 


“Brownsville Spin Lathe” shall have the meaning set forth in Section 6.17.


 


“Bulk Sales Laws” shall have the meaning set forth in Section 13.15.


 


“Business” shall mean the business as conducted by the Sellers
or Skyware prior to the date hereof of designing, developing, manufacturing,
marketing and selling terrestrial satellite antennas and related active
electronic subsystems.


 


“Business Confidential Information” shall mean any proprietary,
non-public information that is related to the Business or the Assets including
information contained in the Transferred Intellectual Property and the Skyware
IP, subject to the following exceptions: 
(i) information that is or becomes generally available to the
public through no action by Sellers or their respective representatives; (ii) information
that is required by applicable Law to be disclosed or is disclosed in response
to a valid Order, but only to the extent required by, and for the purposes of,
such Law or Order; and (iii) information that is independently developed
by or on behalf of the Sellers or their Affiliates without relying on or use of
any proprietary, non-public information related to the Business or the Assets.


 


“Business Day” shall mean any day of the year other than (a) any
Saturday or Sunday or (b) any other day on which banks located in Chicago,
Illinois are authorized or required to be closed for business.


 


“Business Material Adverse Effect” shall mean an effect on the
business, operations, results of operations or financial condition of the
Business as a whole which is, or would reasonably be expected to be, material
and adverse, excluding effects directly or indirectly resulting from or related
to (a) matters generally affecting the economy of the United States of
America and/or any country in which the Business sells products or services,
including changes in interest rates or financial markets, to the extent not
affecting the Business in a materially disproportionate way compared to other
businesses in the telecommunications equipment industry, (b) general
industry developments, including any prospective change arising out of any
proposed or adopted legislation, or any other proposal or enactment by any
Governmental Authority, to the extent not affecting the Business in a
materially disproportionate way compared to other businesses operating in the
telecommunications equipment industry, (c) conditions or effects resulting
from the announcement of this Agreement (including any loss, diminution or
disruption, whether actual or threatened, of existing or prospective customer,
distributor, supplier or employment relationships resulting from such
announcement), (d) acts of war, military action


 


3

















 


or any act of terrorism, including any
escalation thereof, or (e) changes in generally accepted accounting
principles or requirements.


 


“Business Portion” shall have the meaning set forth in Section 2.4(c).


 


“Business Reference Financials” shall have the meaning set forth
in Section 4.4(a).


 


“Calculation Principles” shall mean the accounting principles
set forth on Schedule 1.1A, as applied on a consistent basis by the
Sellers.


 


“Canadian Vacation Policy” shall have the meaning set forth in Section 11.8.


 


“Cap” shall have the meaning set forth in Section 12.4(b).


 


“Cash Payment” shall have the meaning set forth in Section 3.1(a)(i).


 


“Closing” shall mean the consummation of the transactions
contemplated herein in accordance with Article IX.


 


“Closing Date” shall mean the date on which the Closing occurs
or is to occur.


 


“Closing Statement” shall have the meaning set forth in Section 3.2(a).


 


“Closing Warranty Accruals Statement” shall mean a statement
delivered by Andrew to Purchaser two Business Days prior to the Closing setting
forth Andrew’s good faith estimate of the warranty accruals of the Business as
of the Closing Date.


 


“COBRA” shall mean all continuation group health coverage in
accordance with the provisions of Section 4980B or Part 6 of Subtitle
B of Title 1 of ERISA.


 


“Code” shall mean the United States Internal Revenue Code of
1986 and any successor statute, as amended from time to time, in effect as of
the date hereof.


 


“Commitment
Letter” shall have the meaning set forth in Section 6.18.


 


“Confidentiality Agreement” shall mean the confidentiality
agreement dated as of March 7, 2007, between Andrew and the Purchaser.


 


“Confidential Information” shall mean any proprietary,
non-public information that is related to the Other Andrew Businesses including
information contained in Intellectual Property of the Other Andrew Businesses,
subject to the following exceptions:  (i) information
that is or becomes generally available to the public through no action by
Purchaser or its representatives; (ii) information that is required by
applicable Law to be disclosed or is disclosed in response to a valid Order,
but only to the extent required by, and for the purposes of, such Law or Order;
and (iii) information that is independently developed by or on behalf of
the Purchaser or its Affiliates without relying on or use of any proprietary,
non-public information related to any Other Andrew Business.


 


4

















 


“Consent” shall mean a consent, authorization or approval of a
Person, a filing or registration with, or notice to a Person.


 


“Contract” shall mean a contract, lease, license, sales order,
purchase order, agreement, indenture, mortgage, note, bond, warrant, instrument
or other agreement, arrangement, understanding or commitment that is binding on
a Person or its property.


 


“Cumulative EBITDA” shall have the meaning set forth in Section 3.4(a)(i).


 


“Current Employee” shall mean any Person who is employed by any
Seller or any Affiliate of any Seller (other than Skyware) immediately prior to
the Closing Date primarily in connection with the Business, including any such
Person on leave of absence, maternity, pregnancy, parental, or paternity leave,
family medical leave, vacation, sick leave, short term or long term disability,
workers compensation (or workplace safety and insurance), military leave, jury
duty or bereavement leave.


 


“Current Canadian Employees” shall mean a Current Employee
employed at a location of the Sellers in Canada.


 


“Current Other Employee” shall mean a Current Employee who is
not a Current Canadian Employee, Current UK Employee, Current US Employee or
Skyware Employee.


 


“Current UK Employees” shall mean a Current Employee employed at
a location of the Sellers in the United Kingdom, other than the UK Skyware
Employees.


 


“Current US Employee” shall mean a Current Employee employed at
a location of the Sellers in the United States.


 


“Deferred Transaction Assets” shall mean (i) the equipment,
machinery, furniture, tools, spare parts, computer hardware, molds, dies,
cranes, fixtures, compressors, vehicles, supplies and other items of tangible
personal property which are owned by any Seller and held for use in, primarily
used in, or related primarily to, the conduct of the Business in the Reynosa,
Mexico facility, in each case, as of the Closing Date and as set forth on the Schedule of
Deferred Equipment, and (ii) an amount of supplies, materials and
other inventories of raw materials, works-in-progress and finished goods to be
used in the Business equal to the book value (in each case, calculated in
accordance with the Calculation Principles) of the Inventory located at the
Reynosa, Mexico facility as of the Closing Date.


 


“Deferred Transaction Date” shall have the meaning set forth in Section 6.14.


 


“Dollars” or numbers preceded by the symbol “$” shall
mean amounts in United States Dollars.


 


“Early Termination Notice” shall have the meaning set forth in Section 6.19(b).


 


“Earnout Dispute Notice” shall have the meaning set forth in Section 3.4(b)(ii).


 


“Earnout Payment” shall have the meaning set forth in Section 3.4(c).


 


5

















 


“Earnout Period” shall have the meaning set forth in Section 3.4(a)(i).


 


“Earnout Statement” shall have the meaning set forth in Section 3.4(a)(i).


 


“Earnout Update” shall have the meaning set forth in Section 3.4(a)(ii).


 


“EBITDA” means the Purchaser’s and Skyware’s combined net income
(determined in accordance with GAAP consistent with the Purchaser’s standard
accounting practices as applied on a consistent basis), excluding any
extraordinary gains or losses, and increased by the amounts (determined in
accordance with GAAP consistent with the Purchaser’s standard accounting
practices as applied on a consistent basis) incurred for interest, income
Taxes, depreciation, amortization of any intangible assets, amortization of
financing or related fees, management or other fees paid to Resilience
Management Inc. or its Affiliates, management and professional fees and
expenses incurred in connection with acquisitions or attempted acquisitions by
the Purchaser or Skyware after the Closing Date, but only to the extent that
such items were deducted in computing the Purchaser’s and Skyware’s combined
net income.


 


“EBITDA Target Amount” shall have the meaning set forth in Section 3.4(c).


 


“Employees” shall mean, collectively, Current Employees, Former
Employees and Skyware Employees.


 


“Employee Liability Information” has the meaning set out in
Regulation 11 of the TUPE Regulations.


 


“Enforceability Limitations” shall mean limitations on
enforcement and other remedies imposed by or arising under or in connection
with applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar Laws affecting creditors’ rights generally from
time to time in effect or general principles of equity (including concepts of
materiality, reasonableness, good faith and fair dealing with respect to those
jurisdictions that recognize such concepts).


 


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


 


“Environmental Law” shall mean any Law that imposes liability or
standards of conduct concerning, or is designed to regulate the condition of or
protect the Environment or human health and safety including Laws relating to
the generation, treatment, storage, disposal, cleanup, transport, distribution,
use or handling of any Hazardous Substance.


 


“Environmental Liability” shall mean any Loss, Proceeding,
responsibility or other liability (a) arising out of any Environmental Law
and resulting from (i) any condition of the Assets to the extent existing
or occurring prior to the Closing Date, or (ii) the ownership or operation
of the Business (including by any former owner or operator thereof) or the
Assets prior to the Closing Date (or any assets previously owned or operated in
connection with the Business), (b) arising out of any (i) personal
injury or property damage related to an exposure to Hazardous Substances that
occurred prior to the Closing Date and that resulted from any Release existing
or occurring during the ownership or operation of the Business or the Assets
prior to the


 


6

















 


Closing Date or (ii) investigation,
remediation, natural resources damages or other response actions arising from
any Release existing or occurring during the ownership or operation of the
Business or the Assets prior to the Closing Date (or any assets previously
owned or operated in connection with the Business) or (c) arising out of
any Release of Hazardous Substances, from, at or to any off-site location that
occurred prior to the Closing Date and that resulted from the ownership or operation
of the Business or the Assets prior to the Closing Date (or any assets
previously owned or operated in connection with the Business) or arising out of
any Seller’s arrangement for disposal of Hazardous Substances at any off-site
location prior the Closing Date.


 


“Environmental Permit” shall mean any Permit required by or
pursuant to any applicable Environmental Law.


 


“ERISA” shall mean the Employee Retirement Income Security Act
of 1974, as amended.


 


“ERISA Affiliate” shall mean, with respect to any Person, any
corporation, trade or business which, together with such Person, is a member of
a controlled group of corporations or a group of trades or businesses under
common control within the meaning of section 414 of the Code.


 


“ETA” shall have the meaning set forth in Section 6.10(h).


 


“Excluded Assets” shall have the meaning set forth in Section 2.5.


 


“Executory Contract”
shall mean a Contract related to the Business that has any material obligation
on the part of the Sellers or Skyware remaining unperformed thereunder,
excluding any Contract having as its sole remaining obligations warranty and/or
confidentiality obligations entered into in the ordinary course of business
that have not expired.


 


“Existing Products” shall have the meaning set forth in Section 3.4(a)(iii).


 


“Final Deferred Assets Value” shall have the meaning set forth
in Section 3.1(e).


 


“Financial Statements” shall have the meaning set forth in Section 4.4(a).


 


“First Appraiser” shall have the meaning set forth in Section 6.11(c)(ii).


 


“First Seller Promissory Note” shall mean the promissory note to
be issued by the Purchaser to Andrew on the Closing Date in an amount equal to
$2.5 million, in the form attached as Exhibit I-1.


 


“Former Employee” shall mean any Person who is not employed by
any Seller or any Affiliate of any Seller immediately prior to the Closing Date
and who was formerly, but is not as of the Closing Date, an employee of any
Seller or any Affiliate of any Seller primarily in connection with the
Business.


 


“GAAP” shall mean the United States generally accepted
accounting principles.


 


7

















 


“Garner Lease” shall mean the Lease Agreement dated August 19,
2005, between Greenfield North Two, LLC, as landlord, and Andrew, as tenant, as
amended by that First Amendment to Lease Agreement dated August 31, 2005
and further amended by that Second Amendment to Lease Agreement dated January 24,
2006.


 


“Garner Property” shall mean the building and property located
at 600 North Greenfield Parkway, Garner, NC 27529, which is subject to the
terms and obligations under the Garner Lease.


 


“German Skyware Employees” shall mean those Skyware Employees
employed in Germany.


 


“Governmental Authority” shall mean any Federal, state,
provincial, local or foreign government or subdivision thereof, or any entity,
body or authority exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any Federal, state, provincial,
local or foreign government.


 


“Governmental Consent” shall mean the Consents of Governmental
Authorities set forth on Schedule 4.3(a).


 


“GST” shall have the meaning set forth in Section 6.10(h).


 


“Hazardous Substance” shall mean any waste, material or
substance, that is defined or listed as hazardous or toxic or as a pollutant or
contaminant (or a word of similar import), or otherwise regulated, controlled
or which could give rise to Liability under any applicable Environmental Law,
including any petroleum product or byproduct, asbestos or asbestos-containing
materials, radiation and radioactive materials, leaded paints, toxic mold and
other harmful biological agents and polychlorinated biphenyls.


 


“Indebtedness” of any Person means:  either (a) any liability of any Person (i) for
borrowed money (including the current portion thereof), or (ii) under any
reimbursement obligation relating to a letter of credit, bankers’ acceptance or
note purchase facility, or (iii) evidenced by a bond, note, debenture or
similar instrument (including a purchase money obligation), or (iv) for
the payment of money relating to a lease that is required to be classified as a
capitalized lease obligation in accordance with GAAP, other than the
Transferred Personal Property Leases, or (v) for all or any part of
the deferred purchase price of property or services (other than trade
payables), including any “earnout” or similar payments or noncompete payments
or (vi) under interest rate swap, hedging or similar agreements, or (b) any
liability of others described in the preceding clause (a) that such Person
has guaranteed, that is recourse to such Person or any of its assets or that is
otherwise its legal liability or that is secured in whole or in part by
the assets of such Person. For purposes of this Agreement, Indebtedness includes
(A) any and all accrued interest, success fees, prepayment premiums, make
whole premiums or penalties, and fees or expenses actually incurred (including
attorneys’ fees) associated with the prepayment of any Indebtedness and (B) any
and all amounts owed by the Sellers to any Affiliate of the Sellers.


 


“Indemnified Person” shall mean the Person or Persons entitled
to, or claiming a right to, indemnification under Article XII.


 


8

















 


“Indemnifying Person” shall mean the Person or Persons claimed
by the Indemnified Person to be obligated to provide indemnification under Article XII.


 


“Information and Records” shall have the meaning set forth in Section 2.1(d).


 


“Initial Deferred Assets Value” shall have the meaning set forth
in Section 3.1(e).


 


“Intellectual Property” shall mean intellectual property rights,
whether protected, created or arising under the Laws of the United States or
any other jurisdiction anywhere in the world, including:


 


(a)                          patent registrations and
applications, including any continuations, continuations-in-part, divisionals,
reexaminations, or reissues or any equivalent or counterpart thereof;


 


(b)                         registrations of and
applications for trade names, trademarks, service names and service marks, including
any renewals or extensions or any equivalent or counterpart thereof; and


 


(c)                          Technology (which includes, inter alia, copyright registrations and
applications and domain names).


 


“Inventory” shall mean all supplies, materials and other
inventories of raw materials, works-in-progress and finished goods owned by any
Seller or its Affiliate (wherever located) to the extent held for use in, or
exclusively related to, the Business, including any inventories on consignment
with contract manufacturers or customers in connection with the Business.


 


“Inventory Adjustment Amount” shall mean the amount (which may be
a positive or negative number) equal to (a) the Net Inventory Amount minus
(b) $28,000,000.


 


“Inventory Hurdle Amount” shall have the meaning set forth in Section 3.2(f).


 


“IRS” shall mean the Internal Revenue Service.


 


“Law” shall mean any law, statute, regulation, ordinance, rule,
Order, decree or governmental requirement enacted, promulgated or imposed by
any Governmental Authority, including the federal or any state constitution and
common law.


 


“LIBOR Rate” shall have the meaning set forth in Section 3.2(f).


 


“License Agreements” shall mean the Technology License Agreement
substantially in the form set forth in Exhibit C-1 pursuant to
which the Purchaser grants a license to Andrew and their Affiliates and the
Technology License Agreement substantially in the form set forth in Exhibit C-2
pursuant to which Andrew, on behalf of itself and the other Sellers, grants a
license to the Purchaser and its Affiliates.


 


“Lien” shall mean any lien, mortgage, pledge, hypothecation,
right of first refusal, claim, encumbrance, title defect, security interest or
similar restriction or limitation.


 


9

















 


“Loss” or “Losses” shall mean any and all losses,
liabilities, claims, damages, penalties, fines, judgments, awards, settlements,
Taxes, reasonable costs and reasonable expenses (including reasonable fees and
expenses of counsel) and disbursements.


 


“Major Competing Business” shall have the meaning set forth in Section 6.11(c)(i).


 


“Material Customers” shall have the meaning set forth in Section 4.9.


 


“Material Suppliers” shall have the meaning set forth in Section 4.9.


 


“Minor Competing Business” shall have the meaning set forth in Section 6.11(c)(ii).


 


“Net Inventory Amount” shall mean the aggregate value of the
Inventory as of the Closing Date, net of reserves, in each case as determined
in accordance with the Calculation Principles.


 


“Net Tax Reduction” shall have the meaning set forth in Section 12.9(a).


 


“Non-Business Portion” shall have the meaning set forth in Section 2.4(c).


 


“Non-US and Canadian Severance Estimates” shall have the meaning
set forth in Section 4.14(c).


 


“Notice of Acceptance” shall have the meaning set forth in Section 3.2(b)(i).


 


“Notice of Disagreement” shall have the meaning set forth in Section 3.2(b)(ii).


 


“Order” shall mean any order, judgment, injunction, award,
decree, ruling, charge or writ of any Governmental Authority.


 


“Other Andrew Business” shall mean any business of the Sellers
or any of their Affiliates other than the Business.


 


“Other Employees’ Transfer Date” shall have the meaning set
forth in Section 11.1(c).


 


“Parent” shall mean ASC Signal Holdings Corporation, a Delaware
corporation.


 


“Parent Shares” shall mean such number of shares of common stock
of Parent equal to 19.9% of the fully diluted equity of Parent held by Andrew,
The Resilience Fund II, L.P., and any other equity holder that is not an
Employee Investor (as such term is defined in the Stockholders Agreement), as
of the Closing Date.


 


“Patent Assignment” shall mean the patent assignment by the
Sellers in favor of the Purchaser substantially in the form of Exhibit D.


 


“Permit” shall mean any permit, license, approval or other
authorization required or granted by any Governmental Authority.


 


“Permitted Liens” shall mean: 
(a) Liens for Taxes that are not yet delinquent; (b) workers’,
mechanics’, materialmen’s, repairmen’s, suppliers’, carriers’ or similar Liens


 


10

















 


arising in the ordinary course of business
with respect to obligations that are not yet delinquent; (c) covenants,
zoning restrictions, easements, licenses, or other restrictions on the use of
real property or other irregularities in title (including leasehold title)
thereto that do not materially impair the use of such real property, leases or
leasehold estates; (d) Liens, other than Liens securing indebtedness, that
would not reasonably be expected to materially impair the value of the property
subject to such Lien or the use of such property in the conduct of the
Business; (e) Liens that secure obligations that are reflected as
liabilities on or that otherwise are disclosed in the Financial Statements
(including supplementary information thereto) as set forth on Schedule 4.4;
(f) public filings evidencing leases of personal property; and (g) any
matters which would be revealed by a current, accurate survey of the applicable
real property that would not reasonably be expected to materially impair the
value of the applicable real property or the use of such real property in the
conduct of the Business; and (h) those Liens set forth on Schedule 4.6.


 


“Person” shall mean any individual, corporation, proprietorship,
firm, partnership, limited partnership, limited liability company, trust,
association or other entity.


 


“Personal Property Taxes” shall have the meaning set forth in Section 6.10(c).


 


“Post-Closing Straddle Period” shall have the meaning set forth
in Section 6.10(e).


 


“Pre-Closing Straddle Period” shall have the meaning set forth
in Section 6.10(e).


 


“Pre-Closing Tax Period” shall have the meaning set forth in Section 6.10(d).


 


“Proceeding” shall mean an action, suit, claim, complaint,
arbitration, proceeding or other litigation.


 


“Proposed Adjustments” shall have the meaning set forth in Section 3.2(b)(ii).


 


“PTO” shall have the meaning set forth in Section 11.7.


 


“PTO Policy” shall have the meaning set forth in Section 11.7.


 


“Purchase Price” shall mean the aggregate of the Assumed
Obligations, the Parent Shares, the Cash Payment and the Seller Promissory
Notes.


 


“Purchased Contracts” shall mean the Contracts or contractual
rights described in Section 2.3.


 


“Purchaser” shall have the meaning set forth in the Preamble.


 


“Purchaser Benefit Plans” shall have the meaning set forth in Section 11.2.


 


“Purchaser Canadian Plans” shall have the meaning set forth in Section 11.10(b).


 


“Purchaser 401(k) Plan” shall have the meaning set forth in Section 11.10(a).


 


“Purchaser Indemnified Party” shall have the meaning set forth
in Section 12.2.


 


11

















 


“Purchaser’s Knowledge,” or any similar expression with regard
to the knowledge or awareness of or receipt of notice by the Purchaser, shall
mean the actual, direct and personal knowledge of any of the Persons listed on Schedule 1.1B.


 


“Real Property” means all land, together with all buildings,
structures, improvements and fixtures thereon and all easements and other
rights and interests appurtenant thereto.


 


“Real Property Taxes” shall have the meaning set forth in Section 6.10(c).


 


“Real Property Title Warranty” shall mean a representation or
warranty in Section 4.7(c).


 


“Related Agreement” shall mean any Contract that is to be entered
into at the Closing or otherwise pursuant to this Agreement on or prior to the
Closing Date, including the Assignment and Assumption Agreement, the Bill of
Sale, the License Agreements, the Patent Assignment, the Special Warranty
Deeds, the Trademark Assignment, the Trademark License Agreement, the Seller
Promissory Notes and the Transition Services Agreement. The Related Agreements
executed by a specified Person shall be referred to as “such Person’s
Related Agreements,” “its Related Agreements” or other similar
expression.


 


“Release” shall mean any releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
migrating, dumping or disposing of a Hazardous Substance into the Environment
(including, without limitation, the abandonment or discarding of barrels,
containers and other closed receptacles containing any Hazardous Substances).


 


“Requisite Deliveries” shall have the meaning set forth in Section 6.16.


 


“Restricted Actions” shall have the meaning set forth in Section 6.2.


 


“Retained IT Assets” shall mean the information technology
assets, systems, networks and Contracts of the Sellers or any of their
Affiliates (other than Skyware) that are used to administer payroll, employee
benefits, financial accounting, tax and other administrative functions other
than those set forth on Schedule 1.1C.


 


“Retained Obligations” shall have the meaning set forth in Section 2.7.


 


“Reynosa Spin Lathe” shall have the meaning set forth in Section 6.17.


 


“Second Appraiser” shall have the meaning set forth in Section 6.11(c)(ii).


 


“Second Seller Promissory Note” shall mean the promissory note
to be issued by the Purchaser to Andrew on the Deferred Transaction Date in an
amount equal to $2.5 million, in the form attached as Exhibit I-2.


 


“Seller” or “Sellers” shall have the meaning set forth in
the Preamble.


 


“Seller Benefit Plans” shall have the meaning set forth in Section 4.14(a).


 


12

















 


“Seller Indemnified Party” shall have the meaning set forth in Section 12.3.


 


“Seller Material Adverse Effect” shall mean a material and
adverse effect (a) on the ability of the Sellers to perform their
obligations under this Agreement and their Related Agreements or (b) on
the ability of the Sellers to consummate the transactions required to be
effected by them as contemplated hereby and thereby.


 


“Seller Promissory Notes” shall mean the First Seller Promissory
Note and the Second Seller Promissory Note.


 


“Sellers’ Knowledge,” or any similar expression with regard to
the knowledge or awareness of or receipt of notice by any Seller, shall mean
the actual, direct and personal knowledge of any of the Persons listed on Schedule 1.1D.


 


“Severance Estimates” shall have the meaning set forth in Section 4.14(c).


 


“Shared Contract” shall mean any Contract under which (a) the
Business and (b) at least one other business unit of any Seller or any
Affiliates of any Seller purchase or sell goods or services on a joint basis or
otherwise have rights or obligations, including those Contracts set forth on Schedule 1.1E.


 


“Skyware” shall mean Skyware Radio Systems GmbH, a German
limited liability company.


 


“Skyware Assets” shall have the meaning set forth in Section 4.6(a).


 


“Skyware Benefit Plan” shall have the meaning set forth in Section 4.14(a).


 


“Skyware D&O Insurance Policy” shall mean the insurance
policy titled “Executive Protection Portfolio Policy” with Federal Insurance
Company (Chubb) as lead carrier, which is maintained by Andrew for the benefit
of the directors and officers of Andrew and certain of its Affiliates,
including Skyware.


 


“Skyware Employees” shall mean any Person who is employed by
Skyware immediately prior to the Closing Date, including any such Person on
leave of absence, maternity, pregnancy, parental, or paternity leave, family
medical leave, vacation, sick leave, short term or long term disability,
workers compensation (or workplace safety and insurance), military leave, jury
duty or bereavement leave.


 


“Skyware IP” shall mean any Intellectual Property owned by
Skyware.


 


“Skyware Reference Financial Statements” shall have the meaning
set forth in Section 4.4(a).


 


“Smithfield Lease” shall mean the real property lease, dated June 27,
2006, between Smithfield Business Park, LLC and Andrew.


 


13

















 


“Special Warranty Deeds” shall mean the special warranty deeds,
limited warranty deeds or transfers/deeds of land to be delivered by the
applicable Seller for each Transferred Owned Real Property owned by the
applicable Seller, which special warranty deed for the Transferred Owned Real
Property located in Texas being in the form set forth in Exhibit E,
and the transfers/deeds for the Transferred Owned Real Property located in the
Province of Ontario, Canada, with any warranties of title contained therein
(whether statutory, implied or otherwise) to be limited to the applicable
Seller warranting title against anyone claiming by, through or under such
Seller, but not otherwise.


 


“Straddle Period” shall have the meaning set forth in Section 6.10(e).


 


“Straddle Period Tax Matter” shall have the meaning set forth in
Section 6.10(f).


 


“Stockholders Agreement” shall mean that certain Stockholders
Agreement by and among Parent, Andrew and the other equity owners of Parent, in
the form set forth as Exhibit J.


 


“Subsidiary” of a Person shall mean any Person controlled by
such Person. The term “control” as used in the preceding sentence means,
with respect to a corporation, the right to exercise, directly or indirectly, more
than fifty percent (50%) of the voting rights attributable to the shares of
such corporation, or with respect to any Person other than a corporation, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person.


 


“Tax Return” shall mean any report, return, declaration or other
information (including any related schedules or statements) required to be
filed or supplied to a Governmental Authority in connection with any Taxes.


 


“Tax Warranty” shall mean a representation or warranty in Section 4.16.


 


“Taxes” shall mean (i) all taxes, charges, fees, duties,
levies or other assessments (including income, gross receipts, net proceeds, ad
valorem, turnover, real and personal property (tangible and intangible), sales,
use, franchise, excise, goods and services, value added, stamp, user, transfer,
fuel, excess profits, occupational, interest equalization, windfall profits,
severance, payroll, employer health, unemployment and Social Security taxes)
which are imposed by any Law or Governmental Authority, and such term shall
include any interest, penalties or additions to tax attributable thereto (or to
the nonpayment thereof), (ii) any liability for the payment of any amounts
of any of the foregoing types as a result of being a member of an affiliated,
consolidated, combined or unitary group (or any similar group under foreign
Law), and (iii) any liability to indemnify or otherwise assume or succeed
to the liability of any other Person for any of the foregoing items listed in
immediately preceding clause (i).


 


“Technology” shall mean copyrights, copyrightable works,
registrations for copyrights, domain names, trade secrets, proprietary
information, inventions, designs, patterns, drawings, mask works, customer
lists, slogans, logos, blueprints, discoveries, know-how, formulae, practices,
processes, procedures, ideas, methods, moral and economic rights of authors and
inventors, specifications, engineering data, software, firmware, programs,
source codes, databases and data collections, other intellectual or industrial
property rights and foreign equivalent or counterpart rights.


 


14

















 


“Title and Authorization Warranty” shall mean a representation
or warranty in Section 4.1, 4.2, 4.3, 4.6(a), 4.11(c)(iv),
5.1, 5.2 or 5.6.


 


“Title Commitments” shall have the meaning set forth in Section 7.8.


 


“Title Policy” shall have the meaning set forth in Section 7.8.


 


“Trademark Assignment” shall mean the Trademark Assignment by
the Sellers in favor of the Purchaser substantially in the form of Exhibit F.


 


“Trademark License Agreement” shall mean the Trademark License
Agreement substantially in the form set forth in

Exhibit G.


 


“Transfer Taxes” shall have the meaning set forth in Section 6.10(b).


 


“Transferable Permits” shall have the meaning provided in Section 2.3.


 


“Transferred Canadian Employee” shall have the meaning set forth
in Section 11.1(b).


 


“Transferred Employee” shall mean any Transferred US Employee,
Transferred Canadian Employee, Transferred UK Employee or Transferred Other
Employee, and “Transferred Employees” shall mean, collectively, the
Transferred US Employees, the Transferred Canadian Employees, the Transferred
UK Employees and the Transferred Other Employees.


 


“Transferred Intellectual Property” shall mean, collectively,
the Transferred Trademarks, the Transferred Technology and the Transferred
Patents.


 


“Transferred IT Assets” shall mean the information technology
assets, systems and networks of any Seller that are set forth on Schedule 1.1C.


 


“Transferred IT Contracts” shall mean (a) all Contracts of
any Seller for the provision of software, systems, networks and services that
are set forth on Schedule 1.1F and (b) those certain rights
under each Shared Contract set forth on Schedule 1.1E under the
heading “Shared IT Contracts” to the extent pertaining to the conduct of
the Business.


 


“Transferred Other Employee” shall have the meaning set forth in
Section 11.1(c).


 


“Transferred Owned Real Property” shall mean the real properties
set forth on Schedule 1.1G.


 


“Transferred Patents” shall mean the patents and patent
applications, including any continuations, continuations-in-part, divisionals,
reexaminations, or reissues or any equivalent or counterpart thereof (a) that
are set forth on Schedule 1.1H or (b) that claimed inventions
used or held for use by any Seller exclusively in the Business.


 


“Transferred Personal Property Leases” shall mean (a) the
personal property leases set forth on Schedule 1.1I and (b) those
other leases of personal property that are held for use in,


 


15

















 


primarily used in, or related primarily to,
the Business and involve aggregate remaining payments or other liabilities and
obligations of less than $50,000.


 


“Transferred Real Property” shall mean (a) the Transferred
Owned Real Property and (b) the real property that is subject to the
Transferred Real Property Leases.


 


“Transferred Real Property Leases” shall mean the real property
leases set forth on Schedule 1.1J.


 


“Transferred Shares” shall have the meaning set forth in Section 2.2.


 


“Transferred Technology” shall mean all Technology owned by any
Seller that (a) is described on Schedule 1.1K or (b) is
currently used or held for use by any Seller exclusively in the Business.


 


“Transferred Trademarks” shall mean all registered or
unregistered trade names, trademarks, service names and service marks (and
applications for registration of the same), including any renewals or
extensions and any equivalents or counterparts thereof that (a) are set
forth on Schedule 1.1K, or (b) are currently used by any
Seller exclusively in the Business.


 


“Transferred UK Employees” shall have the meaning set forth in Section 11.15(a).


 


“Transferred US Employee” shall have the meaning set forth in Section 11.1(a).


 


“Transition Services Agreement” shall mean the transition
services agreement between Andrew and the Purchaser substantially in the form set
forth in Exhibit H.


 


“TTM EBITDA” shall have the meaning set forth in Section 3.4(a)(iii).


 


“TUPE Regulations” shall mean The Transfer of Undertakings
(Protection of Employment) Regulations 2006.


 


“US and Canadian Severance Estimates” shall have the meaning set
forth in Section 4.14(c).


 


“UK Employees” shall mean the Transferred UK Employees and the
UK Skyware Employees.


 


“UK Skyware Employees” shall mean shall mean those Skyware
Employees employed in the United Kingdom.


 


“Unresolved Adjustments” shall have the meaning set forth in Section 3.2(c).


 


“WARN Act” shall mean the Worker Adjustment and Retraining
Notification Act of 1988, as amended, and any similar Law.


 


“Welfare Plan” shall mean a Seller Benefit Plan that is an “employee
welfare benefit plan” as such term is defined in Section 3(1) of
ERISA (whether or not such plan is subject to ERISA).


 


16

















 


“WildBlue Agreement” shall mean the Purchase Agreement, dated February 28,
2006, between Andrew Corporation and WildBlue Communications, Inc.


 


“Year End Skyware Statements” shall have the meaning set forth
in Section 4.4(a).


 


1.2                                 Interpretation.
The headings preceding the text of Articles and Sections included in this
Agreement and the headings to Schedules attached to this Agreement are for
convenience only and shall not be deemed part of this Agreement or be
given any effect in interpreting this Agreement. The use of the masculine,
feminine or neuter gender or the singular or plural form of words herein
shall not limit any provision of this Agreement. The use of the terms “including”
or “include” shall in all cases herein mean “including, without
limitation” or “include, without limitation,” respectively. Reference
to any Person includes such Person’s successors and assigns to the extent such
successors and assigns are permitted by the terms of any applicable agreement. Reference
to a Person in a particular capacity excludes such Person in any other capacity
or individually. Reference to any agreement (including this Agreement),
document or instrument means such agreement, document or instrument as amended
or modified and in effect from time to time in accordance with the terms
thereof and, if applicable, the terms hereof. Underscored references to
Articles, Sections, paragraphs, clauses, Exhibits or Schedules shall refer to
those portions of this Agreement. The use of the terms “hereunder,” “hereof,”
“hereto” and words of similar import shall refer to this Agreement as a
whole and not to any particular Article, Section, paragraph or clause of, or Exhibit or
Schedule to, this Agreement.


 


ARTICLE II



PURCHASE AND SALE; ASSUMPTION OF ASSUMED OBLIGATIONS


 


2.1                                 Purchase
and Sale of Assets. Except as provided in Sections 2.4 and 2.5
and subject to the other terms and conditions of this Agreement, at the
Closing, each Seller shall, and shall cause its Affiliates, as applicable, to,
sell, assign, convey, transfer and deliver to the Purchaser, and the Purchaser
shall purchase and acquire from such Seller or such Affiliate, and take
assignment and delivery from such Seller or such Affiliate of, all of such
Seller’s or such Affiliate’s right, title and interest in and to all assets,
rights and properties of every nature, kind and description, whether tangible
or intangible, owned, leased or licensed, real, personal or mixed, held for use
in, primarily used in, or related primarily to, the conduct of the Business,
free and clear of any and all Liens (other than Permitted Liens), including the
following:


 


(a)                          Transferred Owned Real
Property. The Transferred Owned Real Property;


 


(b)                         Equipment. All
equipment, machinery, furniture, tools, spare parts, computer hardware, molds,
dies, cranes, fixtures, compressors, vehicles, supplies and other items of
tangible personal property which are owned by such Seller and held for use in,
primarily used in, or related primarily to, the conduct of the Business (other
than such items included in the Deferred Transaction Assets);


 


(c)                          Inventory. The
Inventory (other than the Inventory included in the Deferred Transaction
Assets);


 


17

















 


(d)                         Information and Records.
All customer lists, supplier lists, price lists, sales records, personnel
records (to the extent allowed by applicable Law), referral sources, business
and accounting records and other information and records of any kind and in
whatever form that are owned by such Seller and held for use in, primarily
used in, or have arisen from or are related primarily to the conduct of the
Business (collectively, the “Information and Records”); provided,
that each Seller shall be entitled to retain copies of the Information and
Records, and in the event where originals of such Information and Records must
be retained by such Seller under applicable Law, such Seller shall provide the
Purchaser a copy of the same;


 


(e)                          Trademarks. The
Transferred Trademarks;


 


(f)                            Technology. The
Transferred Technology;


 


(g)                         Patents. The
Transferred Patents;


 


(h)                         Goodwill. All of the
customer relationships and related goodwill of the Sellers to the extent
resulting from the conduct of the Business by the Sellers (it being understood,
for the avoidance of doubt, that such goodwill shall not include any goodwill
associated with the Andrew Name or with any Other Andrew Business);


 


(i)                             Transferred IT Assets.
The Transferred IT Assets;


 


(j)                             Deposits. All
deposits made with any Seller by any customer or other business relation of any
Seller relating to the Business to the extent that cash has actually been
received by such Seller and such deposits have not been converted into
Inventory, in each case excluding any deposits held by any Seller pursuant to
the WildBlue Agreement;


 


(k)                          Communication Rights. All
rights to receive and retain mail and other communications related primarily to
the Business;


 


(l)                             Signage and Materials.
All signs and advertising marketing and promotional materials and all other
printed or written materials (subject in each case to any restrictions on the
use of any Intellectual Property embodied in such materials, including
restrictions contained in the Related Agreements) and all telephone numbers
held for use or exclusively used in the conduct of the Business;


 


(m)                       Other Assets. All other
properties, assets, rights and interests held for use in, primarily used in, or
related primarily to, the Business (other than the properties, assets, rights
and interests of the types referred to in subsections (e), (f), (g) and (i) of
this Section 2.1) and not referred to in subsections (a) through
(l) above or in Section 2.3, except for any Excluded Assets;


 


(n)                         Benefit Plans. All
assets held with respect to the Benefit Plans that are assumed by the Purchaser
under Article XI; and


 


(o)                         Other Specified Assets.
Those assets set forth on Schedule 2.1(o).


 


18
















 


2.2                                 Purchase
and Sale of Transferred Shares. Subject to the other terms and conditions
of this Agreement, at the Closing, Andrew shall sell, assign, convey, transfer
and deliver to the Purchaser, and the Purchaser shall purchase and acquire from
Andrew, and take assignment and delivery from Andrew of, all of the issued and
outstanding capital stock or other equity interests of Skyware (the “Transferred
Shares”).


 


2.3                                 Assignment
of Permits and Contracts. Except as provided in Sections 2.4 and 2.5
and subject to the other terms and conditions of this Agreement, at the
Closing, each Seller shall, and shall cause its Affiliates, as applicable, to,
assign and transfer to the Purchaser, and the Purchaser shall take assignment
of, all of such Seller’s or such Affiliate’s right, title and interest in and
to (x) all Permits used, held for use in, or related primarily to, the
conduct of the Business, to the extent such Permits are transferable
(collectively, the “Transferable Permits”), and (y) in and to the
following Contracts or contractual rights of such Seller or such Affiliate:


 


(a)                          Transferred Real Property
Leases. The Transferred Real Property Leases;


 


(b)                         Personal Property Leases.
The Transferred Personal Property Leases;


 


(c)                          Customer Contracts. (i) All
sale orders and other Contracts for the provision of goods or services to
customers arising exclusively from the conduct of the Business by such Seller
and (ii) the portion of each Shared Contract set forth on Schedule 1.1E
under the heading “Shared Customer Contracts” to the extent pertaining
to the operation of the Business by Purchaser after the Closing;


 


(d)                         Vendor Contracts. (i) All
purchase orders and other Contracts for the purchase of goods or services
related exclusively to the conduct of the Business by such Seller and (ii) the
portion of each Shared Contract set forth on Schedule 1.1E under
the heading “Shared Vendor Contracts” to the extent pertaining to the
operation of the Business by Purchaser after the Closing;


 


(e)                          Distributor Contracts.
(i) All Contracts with sales representatives, manufacturer’s
representatives, distributors, dealers, brokers, sales agencies, advertising
agencies or other Persons engaged in sales, distribution or promotional
activities for or on behalf of such Seller exclusively in connection with the
Business and that are terminable by such Seller (or its assignee) upon 60 days
notice without penalty to such Seller (or its assignee) or any Contract
pursuant to which such Seller acts in one of the foregoing specified capacities
on behalf of any Person exclusively in connection with the Business and that is
terminable by such Seller (or its assignee) upon 60 days notice without penalty
to such Seller (or its assignee), or any Contract set forth on Schedule 2.3(e),  and (ii) the portion of each Shared
Contract set forth on Schedule 1.1E under the heading “Shared
Distributor Contracts” to the extent pertaining to the operation of the
Business by Purchaser after the Closing;


 


(f)                            Intellectual Property
Licenses. Other than the Transferred IT Contracts, (i) all Contracts
involving the licensing, sharing, assignment or transfer to any Seller of
Intellectual Property that is held for use in, primarily used in, or related
primarily to, the


 


19

















 


conduct of the Business and (ii) those
certain rights under each Shared Contract set forth on Schedule 1.1E
under the heading “Shared Intellectual Property Licenses” to the extent
pertaining to the operation of the Business by Purchaser after the Closing;


 


(g)                         Non-Disclosure Obligations.
All non-disclosure, confidentiality and similar obligations owed to such Seller
to the extent related to the Business;


 


(h)                         Transferred IT Contracts.
The Transferred IT Contracts;


 


(i)                             Claims. All
warranties, indemnities, claims, refunds, prepaid expenses, deposits, causes of
action against or with third parties, in each case to the extent arising under
or related to the Purchased Contracts, the Assumed Obligations, the Assets or
the Transferred Shares;


 


(j)                             Other Contracts. (i) All
other Contracts set forth on Schedule 2.3(j), (ii) those
certain rights under each Shared Contract set forth on Schedule 1.1E
under the heading “Other Shared Contracts” to the extent pertaining to
the operation of the Business by Purchaser after the Closing, (iii) such
other Shared Contracts entered into between the date hereof and the Closing
Date in the ordinary course of business to the extent pertaining to the
operation of the Business by Purchaser after the Closing, and (iv) such
other Contracts entered into between the date hereof and the Closing Date in
the ordinary course of, which relate exclusively to, the conduct of the
Business by such Seller, and in the case of clauses (iii) and (iv), not
entered into in violation of Section 6.2;


 


(k)                          Employee Non-Compete
Obligations. All rights with respect to any obligation of any Employee owed
to such Seller to refrain from competing with the Business; and


 


(l)                             Skyware Share Purchase
Agreement. The Share Purchase Agreement dated 10 and 11 November 2005
regarding the sale and purchase of the entire stated capital of Skyware.


 


2.4                                 Certain
Provisions Regarding Assignments.


 


(a)                          Anything in this Agreement to
the contrary notwithstanding, this Agreement shall not constitute an agreement
to assign or transfer any Contract or any claim, right, benefit or obligation
thereunder or resulting therefrom if (i) an assignment or transfer
thereof, without the Consent of a third party thereto, would constitute a
breach or violation thereof or impose any obligation or liability on any Seller
and (ii) such Consent is not obtained at or prior to the Closing; provided,
that Sellers shall use their reasonable best efforts to obtain such Consents
after the Closing.


 


(b)                         If the parties are not
successful in obtaining a Consent at or prior to the Closing, then each Seller,
as necessary, shall use reasonable best efforts to (A) provide to the
Purchaser the benefits of the Contract in question accruing after the Closing
Date; (B) cooperate in any reasonable and lawful arrangement designed to
provide such benefits to the Purchaser and (C) enforce, at the request and
expense of the Purchaser


 


20

















 


and for the account of the Purchaser, any
rights of a Seller arising from any such Contract; and each Seller, as
necessary, will promptly pay to the Purchaser when received all monies received
by such Seller under such Contract. So long as the Purchaser is provided the
benefit of any such Contract pursuant to its terms, the Purchaser will perform or
discharge, on behalf of such Seller, Seller’s obligations and liabilities under
each such Contract in accordance with the provisions thereof except for any
obligations and liabilities under any such Contract that constitute a Retained
Obligation. This Section 2.4(b) will not be construed to
require any Seller or the Purchaser to assume any additional liability
hereunder or to perform under or assume any obligations with respect to
such Contracts in excess of those currently required by such Contracts. Once a
necessary Consent is obtained, the applicable Contract will be deemed to have
been automatically transferred to the Purchaser on the terms set forth in this
Agreement with respect to the other Contracts transferred and assumed at the
Closing, and consistent with the foregoing, the obligations pursuant to the
applicable Contract will be deemed to be Assumed Obligations, and the rights
pursuant to the applicable Contract will be deemed to be Assets. The terms of
this Section 2.4(b) shall not apply with respect to Shared
Contracts, it being understood that the treatment of Shared Contracts is
addressed in Section 2.4(c).


 


(c)                          Prior to the Closing, each
Seller and the Purchaser shall use their reasonable best efforts to work
together (and, if necessary and desirable, to work with the third parties to
the Shared Contracts) in an effort to (i) divide, modify and/or replicate
(in whole or in part) the respective rights and obligations under and in
respect of the Shared Contracts and (ii) if possible, novate the
respective rights and obligations under and in respect of the Shared Contracts,
such that, effective as of the Closing, (y) the Purchaser is the beneficiary of
the rights and is responsible for the obligations related to that portion of
the Shared Contract included in the Purchased Contracts (the “Business
Portion”) (so that, subsequent to the Closing, the applicable Seller shall
have no rights or obligations with respect to the Business Portion of the
Shared Contract) and (z) the applicable Seller is the beneficiary of the rights
and is responsible for the obligations related to the Shared Contract other
than the Business Portion (the “Non-Business Portion”) (so that,
subsequent to the Closing, the Purchaser shall have no rights or obligations
with respect to the Non-Business Portion of the Shared Contract). If the
parties are not able to enter into an arrangement to formally divide, modify
and/or replicate one or more Shared Contracts prior to the Closing as
contemplated by the previous sentence, then each Seller, as necessary, shall
use reasonable best efforts to (A) provide to the Purchaser the benefits
of the Business Portion of each such Shared Contract accruing after the Closing
Date; (B) cooperate in any reasonable and lawful arrangement designed to
provide such benefits to the Purchaser and (C) enforce, at the request and
expense of the Purchaser and for the account of the Purchaser, any rights of a
Seller arising from the Business Portion of any such Shared Contract; and each
Seller, as necessary, will promptly pay to the Purchaser when received all
monies received by such Seller under the Business Portion of such Shared
Contract. So long as the Purchaser is provided the benefit of the Business
Portion of any such Shared Contract, pursuant to its terms the Purchaser will
perform or discharge, on behalf of such Seller, Seller’s obligations and
liabilities under the Business Portion of each such Shared Contract in
accordance with the provisions thereof except for any obligations and


 


21

















 


liabilities under the Non-Business Portion of
any such Shared Contract. This Section 2.4(c) will not be
construed to require any Seller or the Purchaser to assume any additional
liability hereunder or to perform under or assume any obligations with
respect to such Shared Contracts in excess of those currently required by the
Business Portion of such Shared Contracts. Once a necessary Consent is
obtained, the Business Portion of the applicable Shared Contract will be deemed
to have been automatically transferred to the Purchaser on the terms set forth
in this Agreement with respect to the Business Portion of the applicable Shared
Contracts transferred and assumed at the Closing, and consistent with the
foregoing, the obligations pursuant to the Business Portion of applicable
Shared Contract will be deemed to be Assumed Obligations, and the rights
pursuant to the Business Portion of applicable Shared Contract will be deemed
to be Assets.


 


2.5                                 Excluded
Assets. Notwithstanding the provisions of Sections 2.1 and 2.3,
except with respect to the assets of Skyware, all of which shall remain with
Skyware, no Seller shall sell, assign, convey, transfer or deliver to the
Purchaser, and the Purchaser shall not purchase, acquire or take assignment or
delivery of, any of the following assets or Contracts, or any right, title or
interest therein (collectively, the “Excluded Assets”):


 


(a)                          Cash. Except as
specifically set forth in Section 2.1(j), all cash, certificates of
deposit, bank deposits, negotiable instruments, marketable securities and other
cash equivalents, together with all accrued but unpaid interest thereon;


 


(b)                         Current Assets. Except
as specifically set forth in Section 2.1(j) or Section 2.3(i),
all Accounts Receivable, notes receivable, prepaid expenses and other current
assets (other than Inventory).


 


(c)                          Andrew Name. The
Andrew Name and all goodwill associated therewith, except as provided in the
Trademark License Agreement;


 


(d)                         Tax Refunds; Tax Returns.
All claims for and rights to receive refunds, rebates, or similar payments of
Taxes to the extent such Taxes were paid by or on behalf of any Seller or any
Affiliates of any Seller (except to the extent such refunds, rebates or similar
payments are attributable to amounts paid by Purchaser hereunder, in which case
such refunds, rebates or similar payments shall be the property of Purchaser),
all Tax Returns, and all notes, worksheets, files or documents relating
thereto;


 


(e)                          Corporate Records. All
minute books and corporate records of the Sellers or any of their Affiliates;


 


(f)                            Employee Records. All
personnel, employee compensation, medical and benefits and labor relations
records relating to employees or past employees of the Sellers or any of their
Affiliates who do not become Transferred Employees pursuant to Article XI;


 


(g)                         Sale Documents. All
books and records prepared or received in connection with the proposed sale of
the Business, including offers received from


 


22

















 


prospective purchasers, and the right, title
and interest of the Sellers under this Agreement;


 


(h)                         Shared Contracts. All
Shared Contracts other than the respective Business Portions of the Shared
Contracts;


 


(i)                             Disposed Assets. All
assets sold or otherwise disposed of, and rights expiring or terminated, in the
ordinary course of business and not in violation of Section 6.2
during the period from the date of this Agreement until the Closing Date;


 


(j)                             Insurance. Any
insurance policies or insurance coverage relating to the Assets or the
Business;


 


(k)                          Intercompany Agreements.
All Contracts between the Sellers or any Seller (on the one hand) and any
Affiliate of any Seller, including Skyware (on the other hand);


 


(l)                             Intercompany Accounts
Receivable. All accounts receivable from or accounts payable to,  any Affiliate of any Seller;


 


(m)                       Intellectual Property. All
right, title and interest in or to any Intellectual Property or other
intangible property or rights owned by, or leased or licensed to, any Seller or
any Affiliate of any Seller, other than the Transferred Intellectual Property;


 


(n)                         Non-Disclosure Obligations.
All non-disclosure, confidentiality and similar rights or obligations to the
extent related to any Other Andrew Business;


 


(o)                         Employee Non-Compete
Obligations. All rights with respect to any obligation of any Employee to
refrain from competing with any Other Andrew Business;


 


(p)                         Retained IT Assets. The
Retained IT Assets;


 


(q)                         Benefit Plans. All
assets held with respect to the Benefit Plans that are not assumed by the
Purchaser under Article XI;


 


(r)                            Other Inventory. All
inventory of any Seller other than the Inventory; and


 


(s)                          Other Excluded Assets.
Those assets listed on Schedule 2.5(s).


 


None of the Excluded Assets shall be included in the term “Assets,”
“Purchased Contracts,” “Transferable Permits” or any other term
defined in Sections 2.1 or 2.3.


 


2.6                                 Assumed
Obligations. At the Closing, subject to the provisions of Section 2.7,
the Purchaser shall assume, and shall agree to pay, perform and discharge
when due, all liabilities of the Sellers and their Affiliates arising out of or
with respect to the Assets or the


 


23

















 


Business, except to the extent such
obligations and liabilities constitute obligations and liabilities of Skyware,
all of which shall remain with Skyware (the “Assumed Obligations”),
including:


 


(a)                          Purchased Contracts. All
obligations and liabilities arising under the Purchased Contracts, including
the Business Portion of the Shared Contracts, other than any obligations and
liabilities arising out of any breach or violation by Sellers or any of their
Affiliates of such Purchased Contracts prior to the Closing;


 


(b)                         Product Claims. All
obligations and liabilities arising with respect to the products or services of
the Business, whether sold or provided prior to or after the Closing, and
whether arising under warranty, contract, equity, tort, strict liability,
product liability, statute or otherwise, including all obligations and liabilities arising with respect to any
pending recalls of products that have been sold by the Business;


 


(c)                          Employee and Benefit
Obligations. Those obligations and liabilities to or with respect to the
German Skyware Employees and the UK Skyware Employees and the obligations and
liabilities under or with respect to the Skyware Benefit Plans that are assumed
by the Purchaser in Article XI;


 


(d)                         Permits. All
obligations and liabilities with respect to the Transferable Permits other than
any obligations or liabilities arising out of any breach or violation by
Sellers or any of their Affiliates of any such Transferable Permit prior to the
Closing;


 


(e)                          Assumed Proceedings. The
obligations and liabilities arising from or associated with the matters
specifically set forth on Schedule 2.6(e); and


 


(f)                            Other Assumed
Obligations. All other obligations and liabilities specifically set forth
on Schedule 2.6(f).


 


2.7                                 Retained
Obligations. Notwithstanding any other provisions of this Agreement, the
Purchaser shall not assume or otherwise be liable in respect of any of the
obligations and liabilities of the Sellers other than to the extent set forth
in Section 2.6. All other obligations and liabilities of the
Sellers (the “Retained Obligations”) shall be retained by the Sellers. The
Retained Obligations shall include the following:


 


(a)                          Current liabilities. Accounts
Payable, accrued expenses, and other current liabilities arising out of or with
respect to the Business, excluding warranty accruals and deferred revenues to
the extent included in the Assumed Obligations;


 


(b)                         Taxes. Any liabilities
for (i) Transfer Taxes for which the Seller is liable under Section 6.10,  (ii) Taxes of any Seller, and (iii) Taxes
that relate to the Assets or the Assumed Obligations for taxable periods (or
portions thereof) ending on or before the Closing Date, including, without
limitation, Taxes allocable to the Seller pursuant to Section 6.10(c);


 


(c)                          Indebtedness. Indebtedness
of any Seller or their Affiliates (including, without limitation, Skyware);


 


24

















 


(d)                         Benefit Plans. All
obligations and liabilities of the Sellers under the Benefit Plans, other than
those obligations and liabilities to or with respect to the Employees or the
Benefit Plans that are assumed by the Purchaser in Article XI, and
all obligations and liabilities of the Sellers or any ERISA Affiliate of the
Sellers with respect to employee benefit plans other than the Benefit Plans;
and


 


(e)                          Other Retained Obligations.
All obligations and liabilities related to Echostar Technologies Corp. v.
Andrew Corporation (In re Channel Master Holdings), B.R. DE, Adversary No.:
06-50925 (Chapter 7 Case No. 03-13004).


 


2.8                                 Prorations.
Except as otherwise provided in Section 6.10(c), each Seller and the
Purchaser agree that all of the items listed below relating to the Business or
the Assets will be prorated as of the Closing Date, with the applicable Seller
liable to the extent such items relate to any time period up to and including
the Closing Date and the Purchaser liable to the extent such items relate to
periods subsequent to the Closing Date:


 


(a)                          the amount of any fees and
charges which in any case are payable periodically by the applicable Seller
with respect to any of the Purchased Contracts;


 


(b)                         the amount of any fees or
charges which in any case are payable periodically by the applicable Seller
with respect to any of the Transferable Permits; and


 


(c)                          with respect to the
Transferred Owned Real Property, the amount of any fees and charges which in
any case are payable periodically by the applicable Seller with respect to any
utilities, water and sewer charges based upon meter readings as of the
effective time of the Closing and at the prevailing rates, if available;
otherwise, such charges will be apportioned based upon the number of operating
days occurring before and after the effective time of the Closing during the
billing period for each charge.


 


The Sellers agree to furnish the Purchaser with such documents and
other records as the Purchaser reasonably requests in order to confirm all
adjustment and proration calculations made pursuant to this Section 2.8.
Final payments with respect to prorations contemplated by this Section 2.8
that are not ascertainable on or before the Closing Date shall be settled
between the parties as soon as practicable after such prorations are
ascertainable.


 


ARTICLE III



PURCHASE PRICE; ADJUSTMENT; ALLOCATION


 


3.1                                 Payment of Purchase
Price.


 


(a)                          In addition to the issuance
of the Parent Shares as set forth in Section 3.1(b) and the
assumption by the Purchaser of the Assumed Obligations, the Purchaser shall
pay, in the manner set forth in Section 3.1(c), and in
consideration for the Assets and the Transferred Shares, an amount equal to
$14,000,000, or such greater or lesser amount determined as a result of an
adjustment, if any, pursuant to Sections 3.2 and 3.4 payable as
follows:


 


25

















 


(i)                                     at the Closing,
the Purchaser will (A) pay to Sellers an amount in cash equal to
$9,000,000 (the “Cash Payment”) and (B) issue to Andrew the First
Seller Promissory Note; and


 


(ii)                                  on the Deferred
Transaction Date, the Purchaser will issue to Andrew the Second Seller
Promissory Note in accordance with Section 3.1(e).


 


(b)                         At the Closing, the Purchaser
will issue to Andrew the Parent Shares.


 


(c)                          All payments made hereunder
shall be made in accordance with Section 13.4 and to such account
or accounts as the receiving party shall designate in writing to the paying
party not less than one Business Day prior to the applicable payment date. The
Purchase Price shall be allocated among the Sellers at or prior to Closing.


 


(d)                         Notwithstanding anything
herein to the contrary, the Purchaser shall be entitled to withhold any and all
amounts from the Purchase Price equal to any withholding Tax owed to any
Governmental Authority as a result of the transactions contemplated by this
Agreement to the extent required under applicable Law.


 


(e)                          On the Deferred Transaction
Date, the Purchaser shall issue to Andrew the Second Seller Promissory Note in
exchange for the Deferred Transaction Assets, which such assets shall be usable
in the ordinary course; provided, however, that (i) if the value of
the Inventory that is part of the Deferred Transaction Assets transferred
to Purchaser on the Deferred Transaction Date, as calculated consistent with
the Calculation Principles (the “Final Deferred Assets Value”), is less
than the value of the Inventory located at the Reynosa, Mexico facility as
reflected in the Closing Statement as finally determined in accordance with Section 3.2
(the “Initial Deferred Assets Value”), then Andrew shall pay Purchaser
an amount in cash equal to such deficiency; and (ii) if the Final Deferred
Assets Value is greater than the Initial Deferred Assets Value, then, in
addition to the Second Seller Promissory Note, the Purchaser shall pay Andrew
an amount in cash equal to the value of the Inventory attributable to such
excess as such value is determined in accordance with the terms of the Transition
Services Agreement; provided,  however, that Andrew shall
use its reasonable best efforts to cause the Final Deferred Assets Value not to
exceed the Initial Deferred Assets Value, except to the extent such excess is a
result of performing its obligations in the ordinary course or instructions
made by or received from the Purchaser pursuant to the Transition Services
Agreement. Between the Closing Date and the Deferred Transaction Date, Andrew
shall keep the Purchaser apprised of the value of the Deferred Transaction
Assets (estimated in a manner consistent with the Calculation Principles) as
often as reasonably practicable, but in no event less than on a monthly basis. To
the extent that there is a dispute with the calculation of the Final Deferred
Assets Value, then the parties shall follow the procedures outlined in Section 3.2(c).


 


26

















 


3.2                                 Purchase
Price Adjustment.


 


(a)                          The Purchaser shall, as soon
as practicable, and in any event no later than ninety (90) days after the
Closing Date, (i) prepare the initial draft of a statement (the “Closing
Statement”) setting forth, as of 12:01 a.m. (central standard time) on
the Closing Date, the Net Inventory Amount and the Inventory Adjustment Amount
and (ii) deliver the same to Andrew. In connection with the preparation of
the initial draft of the Closing Statement, on the Closing Date, Andrew shall
cause to be prepared and delivered to the Purchaser a statement of Inventory by
location as of the Closing Date. Such statement shall be prepared in a manner
consistent with the Calculation Principles and the Purchaser shall have the
right to review all work papers and procedures used to prepare the calculation
of the amount of Inventory as of the Closing Date and shall have the right to
perform any other reasonable procedures necessary to verify the accuracy
thereof.


 


(b)                         Andrew shall review the
initial draft of the Closing Statement during the thirty (30) day period
commencing on the date that Andrew receives the initial draft of the Closing
Statement. At or prior to the end of such thirty (30) day period, Andrew shall
either:


 


(i)                                     deliver a notice
to the Purchaser confirming that no adjustments are proposed by the Sellers to
the initial draft of the Closing Statement or the Purchaser’s calculation of
the Inventory Adjustment Amount (a “Notice of Acceptance”); or


 


(ii)                                  deliver a notice to
the Purchaser to the effect that Andrew disagrees with the initial draft of the
Closing Statement and/or the Purchaser’s calculation of the Inventory
Adjustment Amount (a “Notice of Disagreement”), specifying the nature of
such disagreement and the adjustments that the Sellers seek to the initial
draft of the Closing Statement and/or the calculation of the Inventory
Adjustment Amount (collectively, the “Proposed Adjustments”).


 


(c)                          To the extent that there are
any Proposed Adjustments, the Purchaser will, no later than fifteen (15) days
after their receipt of the Proposed Adjustments, notify Andrew which of the
Proposed Adjustments it accepts (if any) and which of the Proposed Adjustments
it rejects (if any). Andrew and the Purchaser shall seek in good faith to
resolve any differences that remain in relation to the Proposed Adjustments and
to reach agreement in writing on any Proposed Adjustments not accepted by the
Purchaser. If any of the Proposed Adjustments are not so resolved (the “Unresolved
Adjustments”) within thirty (30) days after Andrew’s receipt of the
Purchaser’s notice relating to the Proposed Adjustments, the Unresolved Adjustments
shall be submitted at the request of either Andrew or the Purchaser to a
mutually acceptable internationally recognized independent public accounting
firm as shall be agreed upon by the parties hereto in writing (the “Accounting
Firm”) for arbitration. The scope of the review by the Accounting Firm
shall be limited to a determination of (i) whether the portions of the
initial draft of the Closing Statement and the calculation of the Inventory
Adjustment Amount related to the Unresolved Adjustments were prepared in
accordance with Section 3.2(g) and (ii) based on its
determinations of the matters described in clause (i), a final calculation of
the Inventory Adjustment Amount. The Accounting Firm is not to make or be asked
to make any determination other than as set


 


27

















 


forth in the previous sentence. Further, the
Accounting Firm may not assign a value to any item greater than the
greatest value for such item claimed by the Purchaser or Sellers or less than
the smallest value for such item claimed by the Purchaser or Sellers, or review
the calculation of the Inventory Adjustment Amount using a methodology which
deviates from that set forth in the Calculation Principles. Andrew and the
Purchaser shall use reasonable best efforts to cause the Accounting Firm to
render its written decision resolving the matters submitted to it as promptly
as practicable and, if at all possible, within thirty (30) days after such
submission of the Unresolved Adjustments. Judgment may be entered upon the
determination of the Accounting Firm in any court having jurisdiction over the
party against which such determination is to be enforced. The Purchaser shall
bear and pay a percentage of the fees and disbursements of the Accounting Firm
that is equal to the percentage of the total amount of changes proposed to the
Closing Statement by Andrew that are successful, and Andrew shall bear and pay
a percentage of the fees and disbursements of the Accounting Firm that is equal
to the percentage of the total amount of changes proposed to the Closing
Statement by the Sellers that are not successful, in each case as determined by
the Accounting Firm. The fees and disbursements (if any) of the Purchaser’s
outside experts incurred in connection with the preparation and certification
of the initial draft of the Closing Statement and their review of any Proposed
Adjustments or Unresolved Adjustments shall be borne by the Purchaser, and the
fees and disbursements (if any) of Andrew’s outside experts incurred in
connection with their review of the draft Closing Statement and any Proposed
Adjustments or Unresolved Adjustments shall be borne by the Sellers.


 


(d)                         The Closing Statement shall
become final and binding on all parties, and shall have the effect of an
arbitral award, upon the earliest of (i) the date that a Notice of
Acceptance is delivered by Andrew pursuant to Section 3.2(b)(i) (in
which case the final Inventory Adjustment Amount shall be as set forth in the
Closing Statement delivered pursuant to Section 3.2(a)), (ii) the
date that is one (1) day after the thirty (30) day review period specified
in Section 3.2(b) has ended if no Notice of Disagreement has
been delivered by Andrew pursuant to Section 3.2(b)(ii) during
such thirty (30) day period (in which case the final Inventory Adjustment
Amount shall be as set forth in the Closing Statement delivered pursuant to Section 3.2(a)),
(iii) the date of an agreement in writing by Andrew and the Purchaser that
the Closing Statement, together with any modifications thereto agreed by Andrew
and the Purchaser, are final and binding (in which case the final Inventory
Adjustment Amount shall be as so agreed upon by the parties) and (iv) the
date on which the Accounting Firm finally resolves in writing any disputed
matters (in which case the final Inventory Adjustment Amount shall be as
determined by the Accounting Firm pursuant to Section 3.2(c)).


 


(e)                          Andrew, on the one hand, and
the Purchaser, on the other hand, shall provide the other (and such other’s
independent auditors) with reasonable access to any books, records, working
papers and employees as the other may reasonably request in connection
with the preparation and review of the Closing Statement pursuant to this Section 3.2.


 


28

















 


(f)                            In the event that the
absolute value of the final Inventory Adjustment Amount is greater than
$2,800,000  (the “Inventory
Hurdle Amount”), the Purchase Price shall be increased by the absolute
value of the final Inventory Adjustment Amount less the Inventory Hurdle Amount
if the final Inventory Adjustment Amount is positive and decreased by the
absolute value of the final Inventory Adjustment Amount less the Inventory
Hurdle Amount if the final Inventory Adjustment Amount is negative. If the
final Inventory Adjustment Amount is a negative number, the Sellers shall,
within two (2) Business Days after the Closing Statement becomes final and
binding on the parties (as provided in Section 3.2(d)), make
payment by wire transfer in immediately available funds to one or more accounts
designated by the Purchaser of the absolute value of such amount together with
a sum equivalent to interest thereon at a rate equal to the LIBOR Rate, accrued
from the Closing Date to and including the date of payment and calculated on
the basis of the actual number of days elapsed divided by 360. If the final
Inventory Adjustment Amount is a positive number, the Purchaser shall, within
two (2) Business Days after the Closing Statement becomes final and
binding on the parties (as provided in Section 3.2(d)), make
payment by wire transfer in immediately available funds to an account
designated by the Sellers of the absolute value of such amount together with a
sum equivalent to interest thereon at a rate equal to the LIBOR Rate, accrued
from the Closing Date to and including the date of payment and calculated on
the basis of the actual number of days elapsed divided by 360. “LIBOR Rate”
shall mean the closing rate of interest announced publicly by the British
Bankers Association as its three (3) month LIBOR rate for U.S. Dollars on
the Business Day immediately following the day the Closing Statement becomes
final and binding on the parties (as provided in Section 3.2(d)). The
parties agree that any amounts paid pursuant to this Section 3.2(f) shall
be allocated in a manner that is consistent with the allocation of the Purchase
Price as set forth on the Allocation Schedule.


 


(g)                         The Closing Statement shall be
prepared in accordance with the Calculation Principles consistent with
historical practices of the Business.


 


3.3                                 Allocation
of Consideration for Assets and Transferred Shares. Within ninety (90) days
after the final determination of the Purchase Price as adjusted pursuant to Section 3.2,
(or sooner with respect to certain specified Assets, as mutually identified by
Andrew and the Purchaser in good faith, including the Transferred Owned Real
Property), the Purchaser shall deliver to Andrew a schedule allocating,
among the Purchaser or its designees, the Purchase Price (including Assumed
Obligations) among the Assets, the Transferred Shares and the covenant
contained in Section 6.11 in accordance with Section 1060 of
the Code and the regulations thereunder (and any other Tax Laws applicable to
the Assets) (the “Allocation Schedule”). If within thirty (30) days of
receipt of the Allocation Schedule, Andrew notifies the Purchaser in writing
that Andrew objects to one or more items reflected on the Allocation Schedule,
Andrew and the Purchaser shall negotiate in good faith to resolve such dispute.
If Andrew and the Purchaser fail to resolve any such dispute within thirty (30)
days of the Andrew’s receipt of the Purchaser’s notice, the parties shall
submit the dispute for resolution to the Accounting Firm for resolution of the
dispute which resolution shall be final and binding on both parties. The
Purchaser and Andrew and their respective Affiliates shall file all necessary
Tax Returns and other forms (including Internal Revenue Service Form 8594)
to report the transactions contemplated herein for U.S. federal, state, local
and non-United States income Tax


 


29

















 


purposes in accordance with such allocation,
and shall not take any position inconsistent with such allocation. Any
adjustment to the Purchase Price for the Assets or the Transferred Shares shall
be allocated as provided in Treasury Regulation Section 1.1060-1, and, in
the event of such adjustment, the Purchaser and the Sellers agree to revise and
amend the Allocation Schedule and Form 8594 within thirty (30) days
of such adjustment.


 


3.4                                 Earnout
Payment.


 


(a)                          (i)                                     Not later than 120
days after the three (3) year anniversary of the Closing Date (such
three-year period, the “Earnout Period”), the Purchaser shall prepare
and deliver to Andrew a statement of the cumulative EBITDA for the Earnout
Period (“Cumulative EBITDA”), together with appropriate supporting
documentation (the “Earnout Statement”).


 


(ii)                                  Not later than 120
days after each anniversary of the Closing Date (but excluding the three year
anniversary), the Purchaser shall prepare and deliver to Andrew a statement of
the Cumulative EBITDA for the one-year periods commencing on the Closing Date
and the first and second anniversaries of such date, as applicable, together
with appropriate supporting documentation (the “Earnout Update”).


 


(iii)                               For the purposes of
calculating Cumulative EBITDA, the Parties hereby agree that EBITDA shall:


 


(A)                              not include the
appropriate financial items for any Person or business unit of a Person
(including product lines), that has been directly or indirectly acquired by the
Purchaser or Skyware during such relevant period; provided  however,
if such Person or business unit of a Person (including product lines), so
acquired manufactures or sells products that would be reasonably expected to
result in a material reduction of Cumulative EBITDA to be derived from the
manufacture and sale of products manufactured and sold by the Business as it is
conducted by the Sellers and Skyware immediately prior to Closing (the “Existing
Products”) that would not have occurred but for such acquisition, and the
aggregate amount of the trailing twelve month EBITDA (the “TTM EBITDA”)
derived from the manufacture and sale of the applicable Existing Products was
an amount greater than zero, the EBITDA Target Amount shall be (1) decreased
by an amount equal to:  (x) the aggregate
amount of the TTM EBITDA derived from such applicable Existing Products
multiplied by (y) a fraction, the numerator of which is the number of months
that remain in the Earnout Period at the time of such acquisition and the
denominator of which is twelve (12), and (2) increased by an amount equal
to the lesser of (x) the amount by which the EBITDA Target Amount was decreased
in accordance


 


30

















 


with Section 3.4(a)(iii)(A)(1) above
or (y) the amount of actual EBITDA derived from the manufacture and sale of the
applicable Existing Product after such acquisition; and


 


(B)                                not include the
appropriate financial items for any Person or business unit of a Person
(including product lines), that Purchaser or Skyware has ceased to operate, or
that has been directly or indirectly disposed of by Purchaser or Skyware, in
each case for the period beginning on the date of such cessation or disposition
and ending at the end of the Earnout Period; provided  however, if
the Person or business unit of a Person (including product lines), so ceased or
disposed of had a positive impact on EBITDA as determined by review of its TTM
EBITDA prior to such cessation or disposition, the EBITDA Target Amount shall
be decreased by an amount equal to:  (x)
the aggregate amount of the TTM EBITDA derived from such Person or business
unit of a Person (including product lines), multiplied by (y) a fraction, the
numerator of which is the number of months that remain in the Earnout Period at
the time of the cessation or disposition and the denominator of which is twelve
(12).


 


(b)                         Audit Rights and Dispute
Resolution.


 


(i)                                     The Purchaser
shall provide Andrew (and its independent auditors) with reasonable access to
any books, records, working papers and employees as it may reasonably
request in connection with the preparation and review of the Earnout Statement
or Earnout Update pursuant to this Section 3.4.


 


(ii)                                  Within 120 days
following receipt by Andrew of the Earnout Statement, Andrew shall deliver
written notice (an “Earnout Dispute Notice”) to the Purchaser of any
dispute the Sellers have with respect to the preparation or content of the
Earnout Statement. The Earnout Dispute Notice must describe in reasonable
detail the items contained in the Earnout Statement that the Sellers dispute
and the basis for any such disputes. Any items included in the Earnout
Statement and not disputed in the Earnout Dispute Notice will be deemed to have
been accepted by the Sellers. If Andrew does not deliver an Earnout Dispute
Notice within such 120-day period, the Earnout Statement will be final,
conclusive and binding on the parties. If an Earnout Dispute Notice is
delivered to the Purchaser, the Purchaser and Andrew shall negotiate in good
faith to resolve such dispute. If the Purchaser and Andrew, notwithstanding
such good faith effort, fail to resolve such dispute within 120 days after Andrew
delivers an Earnout Dispute Notice, then the Purchaser and Andrew jointly shall
engage the Accounting Firm to resolve such dispute in accordance with the
standards set forth in this Section 3.4(b). The scope of the review
by the Accounting Firm shall be limited to a determination of whether the
disputed portions of the initial draft of the Earnout Statement were prepared
in accordance with this Section 3.4. Based on its determinations of
the matters described


 


31

















 


in the preceding sentence, the Accounting
Firm shall make a final determination of Cumulative EBITDA. The Accounting Firm
is not to make or be asked to make any determination other than as set forth
above. Further, the Accounting Firm may not assign a value to any item
greater than the greatest value for such item claimed by the Purchaser or
Sellers or less than the smallest value for such item claimed by the Purchaser
or Sellers, or review the Earnout Statement using a methodology which deviates from
that set forth in this Section 3.4. Andrew and the Purchaser shall
use reasonable best efforts to cause the Accounting Firm to render its written
decision resolving the matters submitted to it as promptly as practicable and,
if at all possible, within thirty (30) days after such submission of the
Earnout Dispute Notice. Judgment may be entered upon the determination of
the Accounting Firm in any court having jurisdiction over the party against
which such determination is to be enforced. The Purchaser shall bear and pay a
percentage of the fees and disbursements of the Accounting Firm that is equal
to the percentage of the total amount of changes proposed to Cumulative EBITDA
by Andrew that are successful, and Andrew shall bear and pay a percentage of the
fees and disbursements of the Accounting Firm that is equal to the percentage
of the total amount of changes proposed to Cumulative EBITDA by the Sellers
that are not successful, in each case as determined by the Accounting Firm. The
fees and disbursements (if any) of the Purchaser’s outside experts incurred in
connection with the preparation and certification of the initial draft of the
Earnout Statement and their review related to any Earnout Dispute Notice shall
be borne by the Purchaser, and the fees and disbursements (if any) of Andrew’s
outside experts incurred in connection with their review of the draft Earnout
Statement and any Earnout Dispute Notice shall be borne by the Sellers.


 


(c)                          Earnout Payments. If
Cumulative EBITDA (as finally determined pursuant to Section 3.4(b)(ii))
is equal to or greater than $30,000,000 (as such amount may be adjusted
pursuant to Section 3.4(a)(iii), the “EBITDA Target Amount”),
the Purchaser shall pay to Sellers an amount equal to the sum of (i) $10,000,000
plus (ii) the product of (x) $1.50 multiplied by (y) an amount equal to
Cumulative EBITDA minus the EBITDA Target Amount (the “Earnout Payment”);
provided, however, that in no event shall the Earnout Payment
exceed $25,000,000. For avoidance of doubt, if the Earnout Statement (as
finally determined pursuant to Section 3.4(b)) reflects Cumulative
EBITDA of less than the EBITDA Target Amount, no Earnout Payment shall be due.


 


(d)                         Post-Closing Conduct of the
Business. Following the Closing Date and until the expiration of the
Earnout Period, the Purchaser will not take any actions that are intended to
decrease the Earnout Payment or the Cumulative EBITDA.


 


ARTICLE IV



REPRESENTATIONS AND WARRANTIES OF THE SELLERS


 


The Sellers jointly and severally represent and warrant to the
Purchaser that, except as otherwise set forth on a Schedule hereto the
relationship of such matter to such other Schedule is reasonably apparent
in its face:


 


32

















 


4.1                                 Due
Organization; Capitalization of Skyware.


 


(a)                          Each Seller and Skyware (i) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has the requisite power and
authority to own, operate and lease its properties and to conduct its business
as presently conducted, and (iii) is duly qualified to do business and is
in good standing (or equivalent status) as a foreign entity in each
jurisdiction that recognizes the concept of good standing (or equivalent
status) and in which its ownership of Assets and its historic conduct of the
Business makes such qualification necessary.


 


(b)                         All Transferred Shares are
owned beneficially and of record by the applicable Seller, are duly authorized,
validly issued, fully paid and nonassessable, have neither been issued in
violation of nor are subject to any preemptive rights and are free and clear of
any Liens. Except for this Agreement, there are no outstanding (i) agreements,
arrangements, warrants, options, puts, calls, rights, subscriptions, preemptive
rights or other commitments to which Skyware or the applicable Seller is a
party relating to the sale, issuance or voting of any of any shares of capital
stock of Skyware or to which the Transferred Shares are subject or (ii) securities
or other instruments convertible into, exchangeable for or evidencing the right
to purchase any shares of capital stock of Skyware. Such Sellers have good and
marketable title to its respective Transferred Shares. Upon the consummation of
the transactions contemplated by this Agreement, the Purchaser will acquire
good and valid title to the Transferred Shares, free and clear of all Liens
(other than Permitted Liens).


 


4.2                                 No
Conflict; Due Authorization. Each Seller and Skyware has full corporate
power and authority to execute, deliver and perform this Agreement and its
Related Agreements and to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance by such Seller of this
Agreement and its Related Agreements and the consummation by such Seller of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action, including, if required, the approval of the board
of directors or other governing body of such Seller. Each Seller has duly and
validly executed and delivered this Agreement and, at, prior to or after the
Closing, as applicable, such Seller will have duly and validly executed and
delivered each of its Related Agreements. Assuming the due authorization,
execution and delivery of this Agreement and its Related Agreements by the
Purchaser, this Agreement constitutes, and each Related Agreement will after
the Closing constitute, the legal, valid and binding obligations of each Seller
(or its Affiliate who is a party thereto), enforceable against it in accordance
with its respective terms, subject to the Enforceability Limitations.


 


4.3                                 Consents
and Approvals; Authority Relative to this Agreement.


 


(a)                          Except as set forth on Schedule 4.3(a),
no Consent of or with any Governmental Authority is necessary in connection
with (y) the execution, delivery or performance of this Agreement by any Seller
or of any of the applicable Related Agreements by such Seller or (z) the
consummation of any of the transactions contemplated hereby or thereby by any
Seller.


 


33

















 


(b)                         Except as set forth on Schedule 4.3(b),
the execution, delivery and performance of this Agreement and of the applicable
Related Agreements by any Seller, and the consummation of the transactions
contemplated hereby and thereby by any Seller, do not and will not:  (w) violate, conflict with or result in
a breach of any Law applicable to or binding on any Seller or any material
Assets or any of the material assets or properties of Skyware; (x) constitute a
breach or default of, or permit cancellation of, or result in the creation of
any Lien upon any of the material assets of, or result in or constitute a
circumstance which, with or without notice or lapse of time or both, would
constitute any of the foregoing under, any material Contract to which any
Seller or Skyware is a party or by which any Seller or Skyware or any of its
respective assets is bound; (y) permit the (i) acceleration of the
maturity of any Indebtedness of any Seller, Skyware or any of their respective
Affiliates or Indebtedness secured by any of their respective assets, or (ii) the
acceleration or creation in any Person of any right to declare a default,
termination or to otherwise modify or cancel any Purchased Contract; or (z)
violate or conflict with any provision of the certificate of incorporation or
by-laws (or similar organizational documents) of any Seller or Skyware.


 


4.4                                 Financial
Statements.


 


(a)                          Schedule 4.4 sets
forth (a) the combined balance sheet and statement of operations and cash
flows of Skyware as of and for the years ended September 30, 2006 and
2005, respectively (referred to collectively as the “Year End Skyware
Statements”), (b) the unaudited balance sheet of Skyware as of August 31, 2007 (the “Balance
Sheet Date”) and the statement of operations and cash flow for the eleven (11)
month period ended on the Balance Sheet Date (the “Skyware
Reference Financial Statements,” and (c) except as with respect to
Skyware, the combined fixed asset register, Inventory register, and deferred
revenue statement of the Business as of the Balance Sheet Date and other
Business financial information (the “Business Reference Financials,” and
together with the Year End Skyware Statements and the Skyware Reference
Financial Statements, the “Financial Statements”). The Financial
Statements were prepared from the books and records of the Sellers, Skyware and
in accordance with the Calculation Principles consistent with historical
practices of the Business. The Financial Statements present fairly in all
material respects the matters set forth in such Financial Statements as of the
respective dates and for the respective periods indicated, except as otherwise
set forth in such Financial Statements.


 


(b)                         Skyware does not have, and the
Business does not have any material liabilities (whether accrued, absolute,
contingent, unliquidated or otherwise, whether due or to become due, whether
known or unknown, regardless of when asserted) except (i) liabilities
reflected in the Skyware Reference Financial Statements (ii) liabilities
reflected on the Business Reference Financials, (iii) liabilities arising
after the Balance Sheet Date in the ordinary course of business, (iv) liabilities
arising under Purchased Contracts (none of which relates to breach of
contract), (v) liabilities relating to the Retained Obligations, (vi) liabilities
with respect to environmental matters (these liabilities are addressed by Section 4.17
and the corresponding Schedules), (vii) liabilities with respect to pending,
threatened or potential Proceedings (these liabilities


 


34
















 


are addressed by Section 4.10 and
the corresponding Schedules) or (viii) as specifically set forth in the
Schedules hereto.


 


4.5                                 No
Adverse Effects or Changes. Except (a) with respect to the Excluded
Assets and the Retained Obligations, (b) as set forth on Schedule 4.5
or any other Schedule to this Agreement and (c) as otherwise
contemplated by this Agreement, from March 31, 2007 until the date of this
Agreement, (i) the Business has not suffered any event which has had a
Business Material Adverse Effect, and (ii) the Business has been conducted
in the ordinary course and in substantially the same manner as previously
conducted. No Seller or Skyware has taken any Restricted Actions since the
Balance Sheet Date.


 


4.6                                 Title
to Assets and Transferred Shares.


 


(a)                          Except as set forth on Schedule 4.6,
(i) one or more of the Sellers or Affiliates of such Sellers, as
applicable, has title to, and is the lawful owner of, the Transferred Shares
and each of the Assets free and clear of any Lien other than Permitted Liens
and (ii) Skyware has title to, and is the lawful owner of, its properties,
assets and rights free and clear of any Liens other than Permitted Liens (the “Skyware
Assets”). Except as set forth on Schedule 4.6 and subject to
obtaining and making all applicable Consents, each Seller or Affiliate (as
applicable) has the right to sell, convey, transfer, assign and deliver the
Transferred Shares and the Assets owned by it to the Purchaser and at the
Closing, such Seller or such Affiliate shall convey to the Purchaser good title
to such Transferred Shares and Assets, in each case free and clear of any Lien
(other than Permitted Liens). This Section 4.6 does not apply to
Transferred Owned Real Property, it being agreed that the sole and exclusive
representations and warranties regarding Transferred Owned Real Property are
set forth in

Section 4.7.


 


(b)                         The Sellers have not
intentionally avoided the assignment to Purchaser hereunder of any properties,
assets or rights which, together with the rights and services to be provided by
the Sellers to the Purchaser under the Transition Services Agreement and the
License Agreements are to Sellers’ Knowledge necessary to operate the Business
in all material respects as it is currently conducted by the Sellers and
Skyware.


 


4.7                                 Owned
Real Property and Leased Real Property.


 


(a)                          Except as set forth on Schedule 4.7(a),
the Transferred Real Property and the Real Property owned or leased by Skyware
is the only Real Property currently used by the Sellers or Skyware in
connection with the Business.


 


(b)                         Subject to the Permitted
Liens, except as set forth on Schedule 4.7(b), neither the Sellers
nor Skyware have assigned, subleased or otherwise encumbered their rights in
any Transferred Real Property Lease or any lease for Real Property leased by
Skyware, as the case may be. The Sellers have provided the Purchasers with
complete and correct copies of all Transferred Real Property Leases and all
leases of Real Property leased by Skyware. No Transferred Real Property Lease
and no lease for Real Property leased by Skyware has been modified, changed,
altered or amended in any material way from the copy of the Transferred Real
Property Lease, or the lease of the


 


35

















 


Real Property leased by Skyware, as the case may be,
delivered to the Purchaser pursuant to this Agreement, nor has any Seller or
Skyware received any written notice, or to the Sellers’ Knowledge oral notice,
of termination with respect to any material Transferred Real Property Lease or
any material lease of Real Property leased by Skyware. To the Sellers’
Knowledge, except as set forth on Schedule 4.7(b), the Transferred
Real Property Leases and the leases of Real Property leased by Skyware are in
full force and effect. None of the Sellers or Skyware (as applicable) is in
default under any material term of the Transferred Real Property Leases, or any
lease of Real Property leased by Skyware, as the case may be, nor to the
Sellers’ Knowledge, has any event occurred which, with notice or the passage of
time, or both, would give rise to such a default by a Seller or Skyware (as
applicable). To the Sellers’ Knowledge, no other party to any Transferred Real
Property Lease or any lease of Real Property leased by Skyware is in default thereunder.


 


(c)                          Subject to the Permitted
Liens, a Seller has the right to sell, convey, transfer, assign and deliver the
Transferred Owned Real Property to the Purchaser, and at the Closing such
Seller shall convey to the Purchaser good and marketable fee simple title to
the Transferred Owned Real Property, free and clear of all Liens (other than
Permitted Liens).


 


(d)                         Except as set forth on Schedule 4.7(d),
neither the Sellers nor Skyware have received any written, or, to Seller’s
Knowledge, oral notices from any Governmental Authority stating or alleging
that any improvements or facilities owned by the Sellers or Skyware and located
on the Transferred Real Property or the Real Property owned or leased by
Skyware, have not been constructed in compliance with applicable Law or are
being operated in violation of applicable Law.


 


(e)                          Except as set forth on Schedule 4.7(e),
all facilities located on the Transferred Real Property and the Real Property
owned or leased by Skyware are currently supplied with utilities and other
services necessary for the current normal operation of said facilities.


 


(f)                            Neither the Sellers nor
Skyware have received any written, or, to the Seller’s Knowledge, oral notice
from any Governmental Authority of any pending, threatened or contemplated
condemnation proceeding affecting the Transferred Real Property or the Real
Property owned or leased by Skyware, or any part thereof.


 


(g)                         Each of the Sellers and
Skyware (as applicable) has maintained all material buildings, structures or
other improvements located on the Transferred Real Property and the Real
Property owned or leased by Skyware (as applicable), or any portion thereof, in
accordance with each Seller’s or Skyware’s (as applicable) customary practices
and maintenance of such items had not been deferred beyond a reasonable time
period.


 


(h)                         The Transferred Owned Real
Property shall be conveyed to the Purchaser, and the Real Property owned or
leased by Skyware shall be accepted by Purchaser, in “as is”, “where is”
condition and, except as otherwise set forth in this


 


36

















 


Section 4.7 or in this Agreement or any
Related Agreements, without representation or warranty of any kind.


 


4.8                                 Equipment;
Leased Personal Property. Schedule 4.8 includes a true and
complete list (including the location thereof) as of the Balance Sheet Date of
all of the material equipment owned by a Seller (and held for use in, primarily
used in, or related primarily to, the Business) or held by Skyware having an
individual book value in excess of $50,000. Schedule 4.8 also sets
forth an accurate and complete list of each lease to which any Seller or
Skyware is a party with respect to personal property used exclusively in the
conduct of the Business having aggregate remaining lease payments in excess of
$50,000. The Sellers have made available to the Purchaser true and complete
copies of all the personal property leases set forth on Schedule 4.8
(excluding personal property leases that the Sellers have provided in redacted form due
to confidentiality restrictions).


 


4.9                                 Customers
and Suppliers. Schedule 4.9 sets forth, collectively (i) with
respect to the last two (2) fiscal years of the Sellers, a list of the
dollar amount derived from each of the ten (10) largest (based on dollar
aggregate amounts purchased from the Sellers and Skyware related to the
Business) customers of the Sellers and Skyware (“Material Customers”),
and (ii) with respect to the last two (2) calendar years, the dollar
amount purchased from each of the ten (10) largest (based on dollar
aggregate amounts purchased by the Sellers and Skyware related to the Business)
suppliers of the Sellers and Skyware (“Material Suppliers”). Except as
set forth on Schedule 4.9, no Material Customer or Material
Supplier has provided a written notice, or, to the Sellers’ Knowledge, oral
notice terminating its relationship with any Seller, Skyware or any Affiliate
thereof, or to the Sellers’ Knowledge, has threatened to do so. No Seller is
involved in any Proceeding with any Material Customer or Material Supplier.


 


4.10                           Proceedings.
Except as set forth on Schedule 4.10, there are no Proceedings
pending, or, to the Sellers’ Knowledge, threatened against any Seller or
Skyware that relates to the Business or the Assets. Except as set forth on Schedule 4.10,
the operation of any Business by any Seller and Skyware is not subject to any
Order, judgment, decree, injunction, stipulation or consent order of or with
any court or other Governmental Authority, the failure to comply with which
would be reasonably expected to have a Business Material Adverse Effect, other
than any such Orders having application to industry-wide matters. Except as set
forth on Schedule 4.10, neither the Sellers nor Skyware (solely in
relation to its conduct of the Business) has entered into any agreement to
settle or compromise any Proceeding pending or threatened against it which has
involved any obligation other than the payment of money and for which it has
any continuing obligation the failure to comply with which would reasonably be
expected to have a Business Material Adverse Effect or Seller Adverse Effect.


 


4.11                           Intellectual
Property.


 


(a)                          Schedule 4.11(a) sets
forth a true and complete list of all licenses, other than “off the shelf”
commercially available software programs purchased or licensed for less than
$100,000 in the aggregate, pursuant to which any Seller or Skyware licenses
Intellectual Property which is material to and used in the conduct of the
Business by such Seller or Skyware.


 


37

















 


(b)                         To the Sellers’ Knowledge, Schedules
1.1H and 1.1K set forth a complete and correct list of all
Transferred Patents, Transferred Trademarks and registered forms of Transferred
Technology and applications therefor and registered, pending and patented forms
of Skyware IP. To the Sellers’ Knowledge, the Transferred Intellectual Property
(including the Skyware IP), together with the Intellectual Property that is
licensed under the License Agreement set forth on Exhibit C-2 and
the Trademark License Agreement constitutes all the Intellectual Property
necessary for the conduct of the Business as currently conducted and as
currently contemplated to be conducted


 


(c)                          Except as set forth on Schedule 4.11(c):


 


(i)                                     to the Sellers’
Knowledge, the use of the Transferred Intellectual Property and Skyware IP as
currently used by the Sellers or Skyware in the conduct of the Business and the
conduct of the Business, as presently conducted by the Sellers or Skyware,
including the manufacture, use, sale and importation of products of the
Business and the possession, use, disclosure, copying or distribution of any
information, data, products or other tangible or intangible used in the
Business, has, does and will not infringe, misappropriate, violate or otherwise
conflict with the Intellectual Property of any other Person;


 


(ii)                                  since January 1,
2004 and February 3, 2006 with respect to Skyware, and to the Sellers’
Knowledge, since January 1, 2001 (and for the period from January 1,
2001 through February 3, 2006 with respect to Skyware), no Seller or
Skyware has received a written notice from any Person which: (A) asserts
an ownership interest in any Transferred Intellectual Property or any
Intellectual Property owned by any Seller or Skyware and material to the
operation of the Business; (B) alleges that the conduct of the Business by
any Seller or Skyware violated any material rights relating to Intellectual
Property of any Person; or (C) challenges the validity or enforceability
of the Transferred Intellectual Property or any Intellectual Property owned by
any Seller or Skyware and material to the operation of the Business;


 


(iii)                               there is no Proceeding
pending or, to the Sellers’ Knowledge, threatened that (A) challenges the
rights of the Sellers or Skyware in respect of, or the scope of, any of the
Transferred Intellectual Property, or any Intellectual Property owned by any
Seller or Skyware and material to the operation of the Business, or is
otherwise adverse to the use, registration, right to use, validity,
enforceability or sole and exclusive ownership of any of the Transferred
Intellectual Property or any Intellectual Property owned by any Seller or
Skyware and material to the operation of the Business or (B) asserts that
the operation of the Business as conducted by the Seller is, was or will be
infringing or otherwise in violation of any Intellectual Property of any other
Person. None of the Transferred Intellectual Property or any Intellectual
Property owned by any Seller or Skyware and material to the operation of the
Business, any Intellectual Property licensed pursuant to the License Agreement
set forth in Exhibit C-2 or any Skyware IP is subject to any Order,
or, to the Sellers’ Knowledge, has been the subject of any Proceeding;


 


38

















 


(iv)                              the Sellers or Skyware,
as applicable, are the sole and exclusive owner of the Transferred Intellectual
Property and Skyware IP, respectively, free and clear of any Liens other than
Permitted Liens; and


 


(v)                                 none of the Sellers or
Skyware has filed any Proceeding or sent any notice of a violation,
infringement, misuse or misappropriation by any Person of the Sellers’ or
Skyware’s rights to, or in connection with, the Transferred Intellectual Property
or the Skyware IP and, to the Sellers’ Knowledge, none of the Transferred
Intellectual Property or Skyware IP is being materially infringed, diluted,
misappropriated or otherwise violated by any Person.


 


(d)                         With respect to the
Transferred Patents, Transferred Trademarks and Skyware IP, all necessary
registration, maintenance and renewal fees that were due and payable to any
applicable United States or other Governmental Authority on or prior to the
date of this Agreement, have been paid, except as set forth on Schedule 4.11(d).
To the Sellers’ Knowledge, reasonable steps have been taken to record each
owner throughout the entire chain of title of all of the Transferred Patents,
Transferred Trademarks and Skyware IP with each applicable Governmental Authority
up through Closing including payment of all costs, fees, taxes and expenses
associated with such recording activities.


 


(e)                          None of the Sellers, Skyware,
nor any of their respective Affiliates has granted any license of any
Transferred Intellectual Property or Skyware IP that is material to the
operation of the Business except (i) as set forth on Schedule 4.11(e) and
(ii) for non-exclusive licenses granted in the ordinary course of
business.


 


(f)                            To the Sellers’ Knowledge,
no director, stockholder, employee, consultant, agent or other representative
of the Sellers or Skyware or any of their respective Affiliates owns or claims
any personal rights in (nor has any of them made application for) any of the
Transferred Intellectual Property or Skyware IP.


 


(g)                         Section 4.2, Section 4.3,
Section 4.6, Section 4.10, Section 4.11, Section 4.12
and Section 4.19 contain the sole and exclusive representations and
warranties of the Sellers regarding Intellectual Property matters.


 


(h)                         The Escrow/Technology License
Agreement, dated April 25, 2007, between Andrew Corporation and L3
Communications Narda Microwave East was never executed.


 


4.12                           Contracts.
Schedule 4.12 contains a true and complete list of all Executory
Contracts of the following types to which (a) any Seller or Skyware is a
party (but only if such Contract primarily relates to the Business) or (b) any
of the Assets or Skyware Assets is subject:


 


(a)                          any Contract with a sales
representative, manufacturer’s representative, distributor, dealer, broker,
sales agency, advertising agency or other Person engaged in sales, distribution
or promotional activities for or on behalf of the Business, or any Contract to
act in one of the foregoing specified capacities on behalf of any Person;


 


39

















 


(b)                         any Contract pursuant to which
any Seller or Skyware has made or will make loans or advances, or has incurred,
or is obligated to incur, Indebtedness or has become a guarantor or surety or
pledged its credit for or otherwise become responsible with respect to any
undertaking of another Person (except for the negotiation or collection of
negotiable instruments in transactions in the ordinary course of business);


 


(c)                          any Contract with (i) any
Affiliate of any Seller (but excluding any contract with or relating to a
Benefit Plan), or (ii) any officer or director of any Seller or Skyware
(other than employment agreements or similar arrangements relating to their
employment);


 


(d)                         any Contract (including a
purchase order) with any customer or supplier with whom the Sellers or Skyware
have entered into Contracts (including purchase orders), which, in the
aggregate, have a commitment of more than $100,000 on an annual basis;


 


(e)                          any Contract involving a
partnership, joint venture or other cooperative undertaking;


 


(f)                            any Contract involving any
non-competition or similar restrictions binding on any Seller or Skyware,
including with respect to the geographical area of operations or scope or type
of business of such Seller or Skyware;


 


(g)                         any Contract for any material
capital expenditures or material leasehold improvement, in each case in excess
of $100,000;


 


(h)                         any collective bargaining
agreement;


 


(i)                             any Contract involving the
licensing, sharing, assignment or transfer of Intellectual Property, except “off
the shelf” commercially available software programs purchased or licensed for
less than $100,000 in the aggregate;


 


(j)                             any Contract containing an
Andrew Guarantee;


 


(k)                          any letter of credit utilized
in or otherwise related to the conduct of the Business;


 


(l)                             any Shared Contract the
Business Portion of which contains a commitment of more than $100,000 on an
annual basis; and


 


(m)                       any other Contract that is
otherwise material to the operation of the Business.


 


The Sellers have made available to the Purchaser copies of each
Contract that is listed on Schedule 4.12 (excluding Contracts that
the Sellers have provided in redacted form due to confidentiality
restrictions). Except as set forth on Schedule 4.12, to Sellers’
Knowledge, all Contracts listed or required to be listed on Schedule 4.12
are in full force and effect and are enforceable by the applicable Seller or
Skyware, as applicable, in accordance with their terms


 


40

















 


(subject to the Enforceability Limitations). With
respect to the Contracts set forth or required to be set forth on Schedule 4.12:  (i) neither the applicable Seller or
Skyware nor, to the Sellers’ Knowledge, any other party thereto, is in default
under or in violation of any material term of such Contract; (ii) to the
Sellers’ Knowledge, no event has occurred that, with notice or lapse of time or
both, would constitute such a default or violation; (iii)  no Seller or
Skyware has released in writing or to the Sellers’ Knowledge orally, any of its
rights under any such Contract; and (iv) no party to such Contracts has
(x) repudiated in writing or, to Sellers’ Knowledge, orally, any of the
material terms thereof, (y) or, to the Sellers’ Knowledge, threatened to
terminate or cancel any such Contracts or (z) to the Sellers’ Knowledge,
provided written notice that it will not renew any such Contract.


 


4.13                           Permits.
Each Seller and Skyware possesses or has applied for all material Permits
required by applicable Law to conduct the Business as currently conducted. Schedule 4.13
is a true and complete list of all Permits (other than Environmental Permits)
held by any Sellers or Skyware related to in the conduct of the Business. This Section 4.13
does not relate to matters specifically covered by other representations and
warranties specified in this Article IV, including any
representations and warranties with respect to compliance with Environmental
Laws or possession of Environmental Permits, each of which matters are
addressed solely and exclusively in Section 4.17.


 


4.14                           Employee
Benefit Plans.


 


(a)                          Schedule 4.14 (a) sets
forth (i) each “employee benefit plan” (as defined in Section 3(3) of
ERISA whether or not such plan is subject to ERISA) (ii) all other
severance pay, salary continuation, bonus, incentive, stock option, retirement,
pension, profit sharing or deferred compensation plans, contracts, programs, or
arrangements, and (iii) all other employee benefit plans, contracts,
programs, or arrangements (whether written or oral, qualified or nonqualified,
funded or unfunded, foreign or domestic, currently effective or terminated),
including any change of control agreements, and any trust, escrow, or similar
agreement related thereto, whether or not funded, in respect of Current Employees
or Skyware Employees that are sponsored or maintained by any Seller, Skyware,
or any of their ERISA Affiliates or with respect to which any Seller, Skyware,
or any of their ERISA Affiliates is required to make contributions or other
payments in respect to the Current Employees or Skyware Employees (all of the
above being hereinafter individually or collectively referred to as an “Benefit
Plan” or “Benefit Plans,” respectively). Schedule 4.14(a) separately
identifies each Benefit Plan in respect of Current Employees as a “Seller
Benefit Plan” and each Benefit Plan in respect of Skyware Employees as a “Skyware
Benefit Plan”.


 


(b)                         All Benefit Plans are in
compliance in form and operation in all material respects with all
applicable requirements of Law and none of the Sellers or Skyware has received
any written notice from any Governmental Authority questioning or challenging
such compliance.


 


(c)                          Copies of the following
materials have been delivered or made available to the Purchaser:  (i) with respect to those Benefit Plans
covering Current US Employees or Current Canadian Employees: (A) all
current plan and trust documents for


 


41

















 


each Benefit Plan or, in the case of an
unwritten Benefit Plan, a written description thereof, (B) the most recent
determination letter from the IRS with respect to each of the Benefit Plans
that is intended to satisfy the tax-qualification requirements of Section 401(a) of
the Code and (C) each employee’s severance entitlement (subject to the
last two sentences of this Section 4.14(c)) under the applicable
plans of the Sellers and their Affiliates as of October 31, 2007 (provided
on an anonymous basis) and attached hereto as Schedule 4.14(c)(i) (the
“US and Canadian Severance Estimates”), (ii) with respect to those
Benefit Plans covering Skyware Employees: 
all material documents pursuant to which the Benefit Plans are
maintained, administered and funded; and (iii) with respect to those
Benefit Plans covering Current Employees who are not Current US Employees or
Current Canadian Employees:  a written
description of each such Benefit Plan and each employee’s severance entitlement
(subject to the last two sentences of this Section 4.14(c)) under
the applicable plans of the Sellers and their Affiliates as of October 31,
2007 (provided on an anonymous basis) and attached hereto as Schedule 4.14(c)(ii) (the
“Non-US and Canadian Severance Estimates” and, together with the US and
Canadian Severance Estimates, the “Severance Estimates”). The Severance
Estimates with respect to Transferred US Employees represent the true and
correct calculations of the severance obligations to each Transferred US
Employee assuming that such Transferred US Employee had been terminated
immediately prior to the date of the Severance Estimates. The Severance
Estimates with respect to Transferred UK Employees, Transferred Canadian
Employees, Skyware Employees and Transferred Other Employees represent the good
faith estimates of the Sellers of the severance obligations to each of the
Transferred UK Employees, Transferred Canadian Employees, Skyware Employees and
Transferred Other Employees, assuming that such Transferred UK Employee,
Transferred Canadian Employee, Skyware Employee and Transferred Other Employee
had been terminated immediately prior to the date of the Severance Estimates,
and such estimated amounts were calculated in good faith by Andrew based on the
Benefit Plans and Laws applicable to the relevant Employees and Andrew’s past
practice.


 


(d)                         Each Benefit Plan intended to
be qualified under Section 401(a) of the Code is so qualified and has
been determined by the IRS to be so qualified, and each trust created
thereunder has been determined by the IRS to be exempt from tax under the
provisions of Section 501(a) of the Code, all amendments to any such
Benefit Plan for which the remedial amendment period (within the meaning of Section 401(b) of
the Code and applicable regulations) has expired are covered by a favorable IRS
determination letter, and to Sellers’ Knowledge, nothing has occurred since the
date of any such determination that could reasonably be expected to give the
IRS grounds to revoke such determination.


 


(e)                          None of the Sellers, Skyware
or any of their ERISA Affiliates currently has, and at no time in the past has
had, an obligation to contribute to a “defined benefit plan” as defined in Section 3(35)
of ERISA or any Canadian legislation respecting pension benefits, funding,
standards or regulations, any pension plan subject to the funding standards of Section 302
of ERISA or Section 412 of the Code, any “multiemployer plan” as defined
in Section 3(37) of ERISA or Section 414(f) of the Code or any “multiple
employer plan” within the meaning of Section 210(a) of ERISA


 


42

















 


or Section 413(c) of the Code, or
any Canadian legislation respecting multiple employer pension plans, or any
Contract requiring minimum contributions by a Seller to a benefit plan or
benefit to a Current Canadian Employee, that would reasonably be expected to
become a liability of Purchaser, and except with respect to those obligations
and liabilities relating to any Benefit Plan that are assumed by the Purchaser
under Article XI, there is no other liability with respect to any
employee benefit plan or arrangement of Sellers, Skyware or their respective
ERISA Affiliates that would reasonably be expected to become a liability of
Purchaser, and there are no Contracts of employment with any Current Canadian
Employees pertaining to any employee’s rights to notice or payment of any
nature on termination of employment or any stay bonuses respecting employment
through the Closing Date.


 


4.15                           Employment
and Labor Matters. The Sellers have made available to the Purchaser a true
and complete list as of October 3, 2007 of the names and titles of all
employees of any Seller (involved primarily in the Business) and Skyware. Except
as set forth on Schedule 4.15, there is, and within the last three
years there has been, no labor strike, material labor dispute, material labor
slow-down, material work stoppage, lockout or other material labor difficulty
pending or, to the Sellers’ Knowledge, threatened, against any Seller or
Skyware and primarily relating to the Business. None of the employees of the
Sellers (involved primarily in the Business) or Skyware is covered by any
collective bargaining agreement, and, to the Sellers’ Knowledge, no
representation petition is pending before the National Labor Relations Board
(or any similar non-U.S. Governmental Authority), and within the last three
years, no union organizing campaign is in progress or is threatened. The German
Skyware Employees have established a works council. Skyware is not subject to
any agreements with the works council which would prevent restructuring,
terminations of employees, respectively terminating only against payment of
severance or any similar restrictions. There are no outstanding employee
invention fees to be paid, and there neither is nor has been in the past years
any dispute between Skyware and any Skyware Employee on the rights and claims
in respect of employee inventions.


 


4.16                           Taxes.
Except as set forth on Schedule 4.16:


 


(a)                          All Tax Returns with respect
to (i) the Business, (ii) Skyware or (iii) the Assets that are
required by applicable Law to be filed on or before the Closing Date by any
Seller or Skyware have been timely filed or will be filed in a timely manner
(within any applicable extension periods). Such Tax Returns are or will be
complete and accurate in all material respects and all Taxes shown to be due on
such Tax Returns have been or will be timely paid in full. There are no Liens
for Taxes with respect to any of the Assets or Skyware Assets (other than
Permitted Liens). All Taxes which Skyware or the Sellers with respect to the
Business are required by Law to withhold or collect, including without
limitation, sales and use taxes, and amounts required to be withheld for Taxes
of employees or other Persons, have been duly withheld or collected and, to the
extent required, have been paid over to the proper Governmental Authorities or,
to the extent not yet payable, are held in separate bank accounts for such
purpose.


 


(b)                         Skyware has not granted or has
had granted on its behalf any extension or waiver of the statute of limitations
period applicable to any Tax Return, which period (after giving effect to such
extension or waiver) has not yet expired. To the Sellers’


 


43

















 


Knowledge, no written claim has ever been
made by a Governmental Authority in a jurisdiction where any Seller (with
respect to the Business) or Skyware does not file Tax Returns and that it is or
may be subject to taxation by that jurisdiction or Governmental Authority.
There is no audit or Proceeding now pending or threatened against or with
respect to any Seller (with respect to the Business) or Skyware in respect of
any Tax.


 


(c)                          Skyware is treated as a
disregarded entity for U.S. federal income tax purposes. Schedule 4.16(c) lists
each Seller that is not a foreign person within the meaning of Section 1445
of the Code (“Nonforeign Sellers”). None of the Sellers that is a
foreign person within the meaning of Section 1445 of the Code is
transferring any United States real property interest (within the meaning of Section 897
of the Code) to the Purchaser pursuant to the transactions contemplated by this
Agreement. Skyware has never made an election under Section 897(i) of
the Code to be treated as a domestic corporation.


 


(d)                         Skyware has no liability for
the Taxes of any Person under Treasury Regulation Section 1.1502-6 (or any
similar provision of state, local or foreign Law) as a transferee or successor,
by contract or otherwise. Skyware is not a party to any Tax allocation or
sharing agreement.


 


4.17                           Environmental
Matters. Except as set forth on Schedule 4.17:


 


(a)                          The Sellers and Skyware (in
relation to the Transferred Real Property, the Real Property owned by Skyware,
the tangible Assets and the Business) have materially complied and are in
material compliance with all applicable Environmental Laws.


 


(b)                         (i) The Sellers and
Skyware are in possession of all Environmental Permits, if any, required for
their operation of the Business and ownership and operation of the tangible
Assets as currently conducted, including those required for operations, on the
Transferred Real Property and the Real Property owned by Skyware, and have
materially complied and are in material compliance with all of the requirements
and limitations included in such Environmental Permits, and (ii) a list of
all such Environmental Permits is set forth on Schedule 4.17(b)(ii).


 


(c)                          Except as has been resolved
prior to the date of this Agreement without any material future or continuing
obligation of any Seller or Skyware, no written notice from any Governmental
Authority or any other Person has been received by any Seller or Skyware
claiming that (i) the operation of the Business, including the operation
at or on any of the Transferred Real Property or the Real Property owned by
such Seller or Skyware is or was in violation of any Environmental Law or
Environmental Permit, or (ii) the Sellers (in connection with the
Business) or Skyware is responsible (or potentially responsible) for the
investigation or cleanup of any Hazardous Substances or for any other
environmental response action at any Transferred Real Property or the Real
Property owned by Skyware or any other locations.


 


44

















 


(d)                         To the Sellers’ Knowledge,
there are no active or abandoned underground tanks and related pipes at the
Transferred Real Property and the Real Property owned by Skyware.


 


(e)                          To the Sellers’ Knowledge,
neither the Sellers nor Skyware sells or has sold any product containing
asbestos or that utilizes or incorporates asbestos-containing materials in any
way.


 


(f)                            To the Sellers’ Knowledge,
the Business, the Transferred Real Property and the Real Property owned by
Skyware will not require a material capital expenditure or annual operating
expense increase during the two years following the Closing Date to achieve
compliance with any Environmental Law.


 


(g)                         No Seller (in relation to the
Transferred Real Property, Real Property of Skyware, tangible Assets or the
Business) is the subject of any pending, or, to the Sellers’ Knowledge,
threatened Proceeding in any forum, judicial or administrative, involving a
demand for damages, injunctive relief, penalties or other potential liability
with respect to any Environmental Liability or any violation of any
Environmental Law. Except as has been resolved prior to the date of this
Agreement without any material future or continuing obligation, no Seller (in
relation to the Transferred Real Property, tangible Assets or the Business) has
entered into or been or is subject to any Order, including any consent decree,
compliance order or administrative order pursuant to an Environmental Law.


 


(h)                         To the Sellers’ Knowledge,
with respect to the Transferred Real Property, Real Property of Skyware,
tangible Assets and the Business, there has been no Release, disposal,
arrangement for disposal of or exposure of any Person to any Hazardous
Substance that has given or could give rise to any material liabilities under
any Environmental Law.


 


(i)                             The Sellers have furnished
or made available to Purchaser all environmental compliance audits, Phase I and
II environmental assessment reports, asbestos surveys and other material
environmental documents relating to the Transferred Real Property, Real
Property of Skyware, tangible Assets and the Business that are in their
possession or under their reasonable control.


 


4.18                           Inventories.
The Inventory and the inventory of Skyware are of a quality useable and fit for
the purpose for which they were procured or it was manufactured, subject to
appropriate allowances reflected in the Financial Statements for obsolete,
excess, slow moving and other irregular items. Such allowances have been
calculated in accordance with the Calculation Principles and in a manner
consistent with the past practice of the Sellers and Skyware. Except as set
forth on Schedule 4.18, none of the Sellers’ or Skyware’s inventory
is held on consignment, or otherwise, by third parties (other than any
Affiliate of any Seller).


 


4.19                           Related
Party Transactions. Except as set forth on Schedule 4.19, none
of the Sellers or any of their respective Affiliates (other than wholly owned
Subsidiaries of any Seller), nor any current director or officer or, to the
Sellers’ Knowledge, any employee or any former


 


45

















 


director, officer or employee of the Sellers
to the extent relating to the Business (a) has or during the last
five fiscal years has had any direct or indirect material interest (i) in,
or is or during the last five fiscal years was, a director, officer or, to the
Sellers’ Knowledge, an employee of, any Person that is a client, customer,
supplier, lessor, lessee, debtor, creditor or competitor of any Seller or
Skyware in respect of the Business or (ii) in any material property, asset
or right that is owned or used by the any Seller or Skyware in the conduct of
the Business or (b) is, or during the last five fiscal years has been, a
party to any material agreement or transaction with any Seller or Skyware
relating to the Business. Except as set forth in Schedule 4.19,
there is no outstanding Indebtedness to any Seller with respect to the Business
or Skyware of any current or former director, officer, employee or consultant
of any Seller, Skyware or any of their Affiliates.


 


4.20                           Product
Liability. In connection with the Business, except as set forth on Schedule 4.20:


 


(a)                          to the Sellers’ Knowledge,
each product manufactured, sold or otherwise delivered by the Sellers or
Skyware has been in material conformity with all applicable contractual
commitments and all express and implied warranties;


 


(b)                         none of the Sellers or Skyware
has any liability for replacement or repair of any such products or other
damages or other costs in connection therewith in excess of the lesser of (x)
$780,000.00 or (y) the warranty accruals reflected in the Closing Warranty
Accruals Statement; and


 


(c)                          there have been no product
recalls by the Sellers or Skyware.


 


4.21                           Indebtedness.
Schedule 4.21 sets forth a true, correct and complete list of the
individual components (indicating the amount and the Person to whom such
Indebtedness is owed) of all the Indebtedness outstanding with respect to
Skyware.


 


4.22                           Canadian
Income Tax Act. Andrew Canada Inc. is not a non-resident of Canada within
the meaning of the Income Tax Act (Canada).


 


4.23                           Andrew
Canada Inc. Andrew Canada Inc. is the sole Seller of Assets located in
Canada.


 


ARTICLE V



REPRESENTATIONS AND WARRANTIES OF THE PURCHASER


 


The Purchaser represents and warrants to the Sellers as follows:


 


5.1                                 Due
Incorporation. The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to own, operate and lease its
assets and to conduct its business as presently conducted.


 


5.2                                 Due
Authorization. The Purchaser has full corporate power and authority to
execute, deliver and perform this Agreement and its Related Agreements and
to consummate the


 


46

















 


transactions contemplated hereby and thereby.
The execution, delivery and performance by the Purchaser of this Agreement and
its Related Agreements and the consummation by the Purchaser of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action, including the approval of the board of directors of
the Purchaser. The Purchaser has duly and validly executed and delivered this
Agreement and, at, prior to or after the Closing, as applicable, will have duly
and validly executed and delivered each of its Related Agreements. Assuming the
due authorization, execution and delivery of this Agreement and the Related
Agreements by each Seller (as applicable), this Agreement constitutes, and each
of the Related Agreements will after the Closing constitute, the Purchaser’s
legal, valid and binding obligation, enforceable against it in accordance with
their respective terms, subject to Enforceability Limitations.


 


5.3                                 Consents
and Approvals; Authority Relative to This Agreement.


 


(a)                          Except as set forth on Schedule 5.3,
no Consent of or with any Governmental Authority or any other Person is
necessary in connection with the execution, delivery or performance by the
Purchaser of this Agreement or any of its Related Agreements or the
consummation by the Purchaser of the transactions contemplated hereby or
thereby.


 


(b)                         Except as set forth on Schedule 5.3,
the execution, delivery and performance by the Purchaser of this Agreement and
its Related Agreements, and the consummation by the Purchaser of the
transactions contemplated hereby and thereby, do not and will not:  (i) violate any Law applicable to or
binding on the Purchaser or any of its assets; (ii) constitute a breach or
default of, or permit cancellation of, or result in the creation of any Lien
upon any of the assets of the Purchaser under, or result in or constitute a
circumstance which, with or without notice or lapse of time or both, would
constitute any of the foregoing under, any Contract to which the Purchaser or
any of its Affiliates is a party or by which the Purchaser or any of its
Affiliates or any of their respective assets is bound; (iii) permit the
acceleration of the maturity of any Indebtedness of the Purchaser or any of its
Affiliates or Indebtedness secured by any of their respective assets; or (iv) violate
or conflict with any provision of the Purchaser’s certificate of incorporation
and bylaws.


 


5.4                                 Proceedings.
There are no Proceedings pending, or, to the Purchaser’s Knowledge, threatened,
by or against the Purchaser or any of its Affiliates with respect to this
Agreement or the Related Agreements, or in connection with the transactions
contemplated hereby or thereby.


 


5.5                                 Financing.
The Purchaser at the Closing will have
sufficient cash, available lines of credit or other sources of immediately
available funds to enable it to consummate the purchase of the Assets which are
in an aggregate amount sufficient to consummate the transactions contemplated
hereby.


 


5.6                                 Independent Investigation. In making the
decision to enter into this Agreement and the Related Agreements and to
consummate the transactions contemplated hereby and thereby, other than
reliance on the representations, warranties, covenants and obligations of the


 


47

















 


Sellers set forth in this Agreement and in
the Related Agreements, the Purchaser has relied solely on its own independent
investigation, analysis and evaluation of the Business, the Transferred Shares
and the Assets (including the Purchaser’s own estimate and appraisal of the value
of the business, financial condition, operations and prospects of the Business
and the Assets).


 


ARTICLE VI



COVENANTS


 


6.1                                 Access
to Information. From and after the date of this Agreement until the Closing
Date, each Seller and Skyware shall afford to the Purchaser and its
accountants, counsel and other representatives reasonable access, upon
reasonable notice during normal business hours, to all the personnel,
properties, books, contracts, commitments, Tax Returns and records of the
Business and during such period shall furnish to the Purchaser any information
of the Business relating to (and then only to the extent relating to) the
Assets or the business of Skyware which is reasonably available to the Sellers
as the Purchaser may reasonably request; provided, that nothing
herein will obligate any Seller to (a) take any actions that would
unreasonably interrupt the normal course of business of the Business or (b) violate
any Law or the terms of any Contract to which any Seller or any Affiliate of
any Seller is a party or to which any assets of any Seller or any Affiliates of
any Seller are subject, and provided, further, that if any
particular document or other item containing information to which the Purchaser
has the right of access pursuant to this Section 6.1 contains both
(y) information related to the Business and (z) other information, then the
applicable Seller may, at its option, either (i) provide a copy of such
document or item to the Purchaser subject to the Purchaser’s obligations
contained herein to keep such other information confidential or (ii) create
a new form of such document or item and provide the Purchaser with access
to such new form of document or item (which new form of document or
item shall incorporate all information that the Purchaser has the right to
access pursuant to this Section 6.1).


 


6.2                                 Preservation
of Business. From the date of this Agreement until the Closing Date, except
as set forth on Schedule 6.2 or as contemplated by this Agreement,
each Seller shall, and shall cause Skyware to, operate the Business in the
ordinary course of business and in a manner consistent with past practice. Without
limiting the generality of the foregoing, except as set forth on Schedule 6.2
or as contemplated by this Agreement, prior to the Closing the Sellers shall
not (solely in relation to the Business), and shall cause Skyware not to,
without the prior written consent of the Purchaser, which shall not be
unreasonably withheld or delayed:


 


(a)                          sell, transfer, convey or
otherwise dispose of any of the Assets (or assets of Skyware) having an
individual book value in excess of $100,000 except in the ordinary course of
business and consistent with past practice;


 


(b)                         acquire or lease any material
assets having an individual book value in excess of $100,000, except in the
ordinary course of business and consistent with past practice;


 


(c)                          make any material changes in
the accounting principles or practices of the Business;


 


48

















 


(d)                         enter into, adopt, amend or
terminate any bonus, profit sharing, compensation, termination, stock option,
stock appreciation right, restricted stock, performance unit, pension,
retirement, deferred compensation, employment, severance or other employee
benefit agreement, trust, plan or fund for the benefit or welfare of any
director, officer or Employee, or materially increase the compensation or
benefits of any director, officer or Employee, or enter into any Contract to do
any of the foregoing, in each case except (1) in the ordinary course of
business or as required by Law or (2) as reasonably required by Andrew to
conduct Other Andrew Business;


 


(e)                          make any loans, advances or
capital contributions to, or investments in, any other Person, in each case,
solely with respect to the Business;


 


(f)                            make, change or revoke any
Tax election with respect to the Business or the Assets that will be binding on
the Purchaser or adversely affect the Tax liability of the Purchaser or any of
its Affiliates; make any write-off or write-down of or made any determination
to write-off or write-down any of the assets and properties of any Seller or
Skyware;


 


(g)                         sell, assign, transfer
(including, without limitation, transfers to any employees, stockholders or
Affiliates), license or subject to any Lien any tangible or intangible assets
or properties, other than sales of inventory in the ordinary course of
business;


 


(h)                         solely with respect to
Skyware, authorize or make any capital expenditures or commitments therefor in
excess of $100,000 individually or $100,000 in the aggregate;


 


(i)                             solely with respect to
Skyware, amend its certificate of incorporation, bylaws or equivalent
organizational documents;


 


(j)                             solely with respect to
Skyware, declare or pay any dividends or other distributions with respect to
any shares of its capital stock or redeem or purchase, directly or indirectly,
any shares of its capital stock or other equity securities; provided, however,
that Skyware shall not be prohibited from declaring and paying one or more cash
dividends prior to the Closing to the extent permitted by applicable Law and to
the extent such dividend does not result in any liability to Skyware beyond
payment of such dividend, which payment shall occur prior to Closing;


 


(k)                          solely with respect to
Skyware, issue or sell any capital stock or other equity interests or split,
combine or subdivide the capital stock or other equity interests;


 


(l)                             solely with respect to
Skyware, enter into, adopt, amend or terminate any bonus, profit sharing,
compensation, termination, stock option, stock appreciation right, restricted
stock, performance unit, pension, retirement, deferred compensation,
employment, severance or other employee benefit agreement, trust, plan or fund
for the benefit or welfare of any officer, employee, director, partner or
consultant of Skyware or its Affiliates, or materially increase the
compensation or benefits of any such Person, or


 


49

















 


enter into any Contract to do any of the
foregoing, in each case except as required by Law;


 


(m)                       solely with respect to Skyware,
institute or settle any Proceeding that involves more than $100,000;


 


(n)                         solely with respect to
Skyware, make any write-off or write-down of or make any determination to
write-off or write-down any of its assets and properties in excess of $100,000;


 


(o)                         solely with respect to
Skyware, license in or purchase any Intellectual Property other than in the
ordinary course of business or license out or otherwise permit any Person to
use any Intellectual Property;


 


(p)                         commence or terminate any line
of business relating to the Business;


 


(q)                         make or change any election,
change an annual accounting period, adopt or change any accounting method, file
any amended Tax Return, enter into any closing agreement, settle any Tax claim
or assessment, surrender any right to a claim for refund of Taxes, consent to
any extension or waiver of the limitation period applicable to any Tax claim or
assessment or take any other similar action relating to the filing of any Tax
Return or the payment of any Tax, if such election, adoption, change,
amendment, agreement, settlement, surrender, consent or other action would have
the effect of increasing the Tax liability of the Purchaser or any of its
Affiliates for any period ending after the Closing Date; or


 


(r)                            agree to do any of the
foregoing.


 


Each such courses of conduct described in Sections
6.2(a) — (r) being a “Restricted Action,” and
collectively, the “Restricted Actions.”


 


6.3                                 Consents
and Approvals.


 


(a)                          On the terms and subject to
the conditions of this Agreement, each party shall use its reasonable best
efforts to cause the Closing to occur, including taking all reasonable actions
necessary to comply promptly with all legal requirements that may be
imposed on it or any of its Affiliates with respect to the Closing. For
purposes of this Section 6.3, the “reasonable best efforts”
of the Purchaser shall include opposing any motion or action for a temporary,
preliminary or permanent injunction against or other prohibition of the Closing.
The Purchaser shall be responsible for transferring, applying for, or otherwise
obtaining (in the name of the Purchaser or any Affiliate of the Purchaser) all
Permits that are required for the conduct of the Business by the Purchaser from
and after the Closing, within the period of time required by any Law or
Governmental Authority.


 


(b)                         In furtherance and not
limitation of the provisions of Section 6.3(a), each Seller and the
Purchaser shall cooperate with each other with respect to obtaining and making
the Consents of Governmental Authorities and act as if all notifications,
filings,


 


50

















 


submissions and other evidence, and all
assurances, commitments or undertakings to be provided, or consent decrees to
be entered into, in such connection are required to be prepared and filed
jointly by all parties even if under particular circumstances they are formally
made by only one party. In particular, each Seller and the Purchaser shall
promptly provide drafts to the other party, allow reasonably adequate time for
comment by the other party and consult promptly with the other party with
respect to the contents of all notifications, filings, submissions, further
documentation and evidence to be submitted to all relevant Governmental
Authorities. Each Seller and the Purchaser shall, in each case where permitted
by the relevant Governmental Authority, allow Persons nominated by the other
party to attend all meetings with Governmental Authorities and, where
appropriate, to make oral submissions at such meetings. The Purchaser and each
Seller shall (i) furnish to the other such necessary information and
reasonable assistance as the other may require in connection with its
preparation of any notification, filing, submission or further documentation or
evidence that is necessary in obtaining and making Governmental Required
Consents and (ii) promptly disclose to the other all correspondence
received from or sent to any relevant Governmental Authority in connection
herewith and shall keep the other fully informed of any other related
communication in whatever form with any of the relevant Governmental
Authorities. The Purchaser and the Sellers shall comply promptly with any
inquiry or request for additional information from any relevant Governmental
Authority in connection herewith and shall promptly provide any supplemental
information requested in connection with the notifications, filings and/or
submissions made hereunder for the purposes of obtaining and making the
Governmental Required Consents.


 


(c)                          Each party shall, and shall
cause its Affiliates to, use its reasonable best efforts (at its own expense)
to obtain, and to cooperate in obtaining, all Consents from third parties in
respect of Purchased Contracts (or Contracts of Skyware, as applicable) to the
extent such Purchased Contracts (or Contracts of Skyware) require such Consents
as a result of the transactions contemplated hereby; provided, however,
that the parties shall not be required to pay or commit to pay any amount to
(or incur any obligation in favor of) any Person from whom any such Consent may be
required (other than nominal filing or application fees and, with respect to
the Smithfield Lease, guarantees not to exceed a period of twelve (12) months
after the Closing Date). The Purchaser acknowledges that certain Consents with
respect to the transactions contemplated by this Agreement may be required
from parties to Contracts and that such consents and waivers may not be
obtained prior to Closing. No Seller or any of their respective Affiliates
shall have any liability whatsoever to the Purchaser arising out of or relating
to the failure to obtain any Consents that may be required in connection
with the transactions contemplated by this Agreement or because of the
termination of any Purchased Contract (or Contracts of Skyware) as a result
thereof, in each case so long as the Purchaser is provided the benefit of any
such Contract as provided in Section 2.4.


 


6.4                                 Garner
Facility Sublease. Purchaser and Andrew shall enter into a sublease
effective as of the Closing Date for the Garner Property, which sublease shall
be consistent with the following terms:  (i) the
sublease shall be for period equal to the remaining term of the Garner Lease; (ii) the
additional rent, base rent (including any upward adjustments in the rent as set
forth in the Garner Lease) and common area costs and expenses (including
janitorial and


 


51

















 


other maintenance services) to be paid by
Purchaser under the sublease shall be based on the pro rata portion of the
Garner Property deemed to be occupied by the Business as of the Closing Date;
and (iii) the sublease otherwise shall be on substantially the same terms
as set forth in the Garner Lease, including, but not limited to, all such
terms, conditions, requirements and obligations that relate to environmental,
insurance and notice matters, and any costs or obligations due or payable in
connection therewith shall be allocated to the Purchaser based on the pro rata
share of square footage occupied by the Business at the Garner Property as of
the Closing Date. For purposes of this Section 6.4, the pro rata
portion of the Garner Property deemed to be occupied by the Business as of the
Closing Date shall equal (i) the non-common area square footage occupied
by the Business at the Garner Property as of the Closing Date, divided by (ii) the
total of the non-common square footage contained in the Garner Property.


 


6.5                                 Brokers.
Regardless of whether the Closing shall occur, (a) the Sellers shall
indemnify the Purchaser and its Affiliates against, and hold the Purchaser and
its Affiliates harmless from, any and all liability for any brokers’ or finders’
fees or other commissions arising with respect to brokers or finders retained
or engaged by the Sellers or any of its Affiliates in respect of the
transactions contemplated by this Agreement, and (b) the Purchaser shall
indemnify the Sellers and its Affiliates against, and hold the Sellers and its
Affiliates harmless from, any and all liability for any brokers’ or finders’
fees or other commissions arising with respect to brokers or finders retained
or engaged by the Purchaser or any of its Affiliates in respect of the
transactions contemplated by this Agreement.


 


6.6                                 Preservation
of Books and Records; Access and Assistance.


 


(a)                          For a period of seven (7) years
after the Closing Date, the Purchaser shall preserve and retain all Information
and Records and other accounting, legal, auditing and other books and records
(including any documents relating to any governmental or non-governmental
claims, actions, suits, proceedings or investigations with respect to any
Seller or Skyware) relating to (i) the conduct of the Business or (ii) the
ownership of the Assets (or the assets of Skyware) on or prior to the Closing
Date. Notwithstanding the foregoing, during such seven-year period, the
Purchaser may dispose of any such books and records which are offered to,
but not accepted by, any Seller. If at any time after such seven-year period
the Purchaser intends to dispose of any such books and records, the Purchaser
shall not do so without first offering such books and records to such Seller.


 


(b)                         After the Closing Date, the
Purchaser shall permit any Seller and its authorized representatives to have
reasonable access to, and to inspect and copy, all Information and Records and
other books and records referred to in Section 6.6(a) and to
meet with officers and employees of the Purchaser on a mutually convenient
basis in order to obtain explanations with respect to such Information and
Records and books and records and to obtain additional information.


 


(c)                          In the event and for so long
as any party hereto is contesting or defending against any third-party charge,
complaint, action, suit, proceeding, hearing, investigation, claim or demand in
connection with (i) any transaction contemplated under this Agreement or
relating to any (A) Excluded Asset, (B) Retained Obligation,


 


52
















 


(C) Acquired Asset, or (D) Assumed
Obligation, or (ii) any fact, situation, circumstance, status, condition,
activity, practice, plan, occurrence, event, incident, action, failure to act,
or transaction on or prior to the Closing Date involving any Asset or the
Business, each other party hereto shall (A) reasonably cooperate with it
and its counsel in, and reasonably assist it and its counsel with, the contest
or defense, (B) reasonably make available its personnel (including for
purposes of fact finding, consultation, interviews, depositions and, if
required, as witnesses), (C) provide such information, testimony and
access to its books and records, in each case as shall be reasonably requested
in connection with the contest or defense, and (D) reasonably cooperate in
the implementation of any settlement thereof, in each case, all at the sole
cost and expense (not including employee compensation and benefits costs) of
the contesting or defending party (unless the contesting or defending party is
entitled to indemnification therefor under Article XII). For the
avoidance of doubt, this Section 6.6(c) shall not apply with
respect to disputes between the parties hereto.


 


6.7                                 Insurance.


 


(a)                          The Purchaser acknowledges
that except for the Skyware D&O Insurance Policy, (i) all of the
insurance policies maintained by any Seller or any Affiliate of any Seller
prior to the Closing Date will be terminated with respect to the Business
effective as of the Closing Date and (ii) upon such termination, the
Business will cease to be covered under such policies and the Purchaser will
have to obtain replacement coverage (including coverage as the Purchaser deems
appropriate for the Assets, the operation of the Business and the satisfaction
of the Assumed Obligations).


 


(b)                         From and after the Closing
Date, Sellers shall use commercially reasonable efforts to assist Purchaser in
pursuing claims for any loss, liability or damage relating to Skyware’s
directors and officers under the Skyware D&O Insurance Policy solely
arising out of insured incidents occurring from the date coverage thereunder
first commenced until the Closing Date to the extent that the terms and
conditions of such policy so allow; provided, that (i) all of
Sellers’ reasonable costs and expenses incurred in connection with the
foregoing (including the payment of any required deductibles) are the sole
obligation of the Purchaser and such costs and expenses shall be promptly paid
by the Purchaser, (ii) Sellers may, at any time, amend, commute,
terminate, buy-out, extinguish liability under or otherwise modify the Skyware
D&O Insurance Policy, provided that such modification shall not
materially and adversely affect any rights of Purchasers with respect to this Section 6.7(b) and
(iii) any such claim will be subject to all the terms and conditions of
the Skyware D&O Insurance Policy.


 


6.8                                 Confidentiality.


 


(a)                          The Purchaser acknowledges
that the information being provided to it in connection with the transactions
contemplated hereby is subject to the terms of the Confidentiality Agreement,
the terms of which are incorporated herein by reference. Effective upon, and
only upon, the Closing, the Confidentiality Agreement shall terminate with
respect to information relating solely to (i) the Business and/or (ii) the
Assets. The Purchaser acknowledges that any and all other information provided
to it


 


53

















 


prior to the Closing by the Sellers or any of
their Affiliates or representatives shall remain subject to the terms and conditions
of the Confidentiality Agreement after the Closing.


 


(b)                         The Purchaser acknowledges
that, subsequent to the Closing, it may be furnished with, receive or
otherwise have access to, information associated with the Other Andrew
Businesses, including information contained in Intellectual Property of the
Other Andrew Businesses. The Purchaser further acknowledges that certain
Transferred Employees that the Purchaser will hire in connection with the
transactions contemplated hereby may have obtained Confidential
Information, and that these employees have previously signed confidentiality
agreements which contain covenants prohibiting the use or disclosure of such
Confidential Information.


 


(c)                          Subsequent to the Closing,
except as otherwise permitted in the Related Agreements, the Purchaser shall
not disclose, and shall maintain the confidentiality of, all Confidential
Information. The Purchaser shall use at least the same degree of care to
safeguard and to prevent the disclosure, publication, dissemination, destruction,
loss or alteration of the Confidential Information as it employs to avoid
unauthorized disclosure, publication, dissemination, destruction, loss, or
alteration of its own information (or information of its customers) of a
similar nature, but in no case less than reasonable care. Except as otherwise
permitted in the Related Agreements, the Purchaser shall not (i) use any
Confidential Information in any manner, (ii) make any copies of any
Confidential Information, (iii) acquire any right in or assert any Lien
against any Confidential Information, (iv) sell, assign, transfer, lease,
license or otherwise dispose of any Confidential Information to third parties
or commercially exploit any Confidential Information, including through
derivative works, or (v) refuse for any reason (including a default or
breach of this Agreement or any Related Agreement by any Seller) to promptly
provide any tangible embodiments of the Confidential Information (including
copies thereof) to any Seller if requested to do so, in the form reasonably
requested. The Purchaser agrees to respect the terms and conditions of the
confidentiality agreements referenced in Section 6.8(b) above,
including by not seeking or requiring the disclosure of any Confidential
Information by such employees in breach of such confidentiality agreements.


 


(d)                         Except as otherwise permitted
in the Related Agreements, nothing contained in this Agreement shall be
construed as obligating any Seller or any Affiliate of any Seller to disclose
any Confidential Information to the Purchaser, or as granting to or conferring
on the Purchaser, expressly or impliedly, any right, title, interest or license
to any Confidential Information or any components thereof.


 


(e)                          The Sellers acknowledge that,
subsequent to the Closing, they will be in possession of information associated
with the Business and the Assets, which will at that time be owned by the
Purchaser.


 


(f)                            Subsequent to the Closing,
except as otherwise permitted in the Related Agreements, the Sellers shall not
disclose, and shall maintain the confidentiality of, all Business Confidential
Information. The Sellers shall use at least the same degree of


 


54

















 


care to safeguard and to prevent the
disclosure, publication, dissemination, destruction, loss or alteration of the
Business Confidential Information as it employs to avoid unauthorized
disclosure, publication, dissemination, destruction, loss or alteration of its
own information (or information of its customers) of a similar nature, but in
no case less than reasonable care.


 


(g)                         Regarding Business
Confidential Information, except as otherwise permitted in the Related
Agreements, the Sellers shall not (i) use any such Business Confidential
Information in any manner, (ii) make any copies of any Business
Confidential Information, (iii) acquire any right in or assert any Lien
against any such Business Confidential Information, (iv) sell, assign,
transfer, lease, license or otherwise dispose of any such Business Confidential
Information to third parties or commercially exploit any such Business
Confidential Information, including through derivative works, or (v) refuse
for any reason (including a default or breach of this Agreement or any Related
Agreement by any Seller) to promptly provide any tangible embodiments of such
Business Confidential Information (including copies thereof) to the Purchaser
if requested to do so, in the form reasonably requested.


 


(h)                         Notwithstanding any other
provision of this Agreement, it is understood and agreed that the remedy of
indemnity payments pursuant to Article XII and other remedies at
law may be inadequate in the case of any breach of the covenants contained
in this Section 6.8. Accordingly, each Seller and Purchaser shall
be entitled to seek equitable relief, including the remedies of specific
performance and injunction, with respect to any breach or attempted breach of
such covenants.


 


6.9                                 Guarantees.
The Purchaser will cooperate with the Sellers in obtaining, and use its
reasonable best efforts to obtain, a full and unconditional release of all
Andrew Guarantees listed on Schedule 4.12, including by agreeing to
enter into a replacement guarantee in favor of any third party creditor who is
a beneficiary of such Andrew Guarantee; provided, however, in the
event that Purchaser is required to provide a letter of credit or other payment
assurance, Andrew shall retain such Andrew Guarantee and the Purchaser shall
indemnify Andrew for any and all Losses arising from and payment required to be
made by Andrew pursuant to such Andrew Guarantee.


 


6.10                           Taxes.


 


(a)                          Cooperation. After the
Closing, each Seller and the Purchaser shall reasonably cooperate in preparing
and filing all Tax Returns to the extent such filing requires providing
necessary information, records and documents relating to (i) the Assets or
(ii) the Business. Each Seller and the Purchaser shall cooperate in the
same manner in defending or resolving any audit, examination or litigation
relating to Taxes. Each of the Sellers shall provide, within 10 days of the
Purchaser’s request therefor, any information required to be reported by the
Purchaser under Section 6043A of the Code.


 


(b)                         Taxes Related to
Transaction. Except for any value-added tax, 100% of which shall be paid by
the Purchaser, the Sellers, on the one hand, and the Purchaser, on the other
hand, shall each pay 50% of the cost of all sales, use or transfer Taxes, and
all


 


55

















 


recording costs, arising out of the transfer
of the Assets, the Business and the Transferred Shares pursuant to this
Agreement and all costs and expenses incurred in connection with the
transferring and recording of title to the Assets and the Transferred Shares
(the “Transfer Taxes”). The Tax Returns required by reason of said
transfer shall be timely prepared by the party legally obligated to make such
filing. The parties agree to cooperate with each other in connection with the
preparation and filing of such Tax Returns, in obtaining all available exemptions
from such Transfer Taxes and in timely providing each other with resale
certificates and any other documents necessary to satisfy any such exemptions.


 


(c)                          All Real Property Taxes and
all Personal Property Taxes with respect to the Assets will be prorated as of
the Closing Date with (i) the applicable Seller being liable for such
taxes relating to any time period or periods ending on or prior to the Closing
Date and (ii) Purchaser being liable for such taxes relating to any time
period or periods beginning after the Closing Date. Proration of Real Property
Taxes and Personal Property Taxes will be made on the basis of the most recent
officially certified tax valuation and assessment for the Assets. If such
valuation pertains to a tax period other than that in which the Closing occurs,
such apportionment will be recalculated at such time as actual tax bills for
such period are available, and the parties shall cooperate with each other in
all respects in connection with such recalculation and pay any sums due in
consequence thereof to the party entitled to recover the same within 60 days
after the issuance of such actual tax bills. For purposes of this Section 6.10(c),
“Real
Property Taxes” mean real property taxes, ad valorem taxes, general
assessments and special assessments with respect to real property, as well as
any assessments or other charges assessed against real property under any
private covenants, conditions and restrictions affecting such real property; “Personal Property
Taxes” mean ad valorem taxes with respect to the Assets other than
real property.


 


(d)                         The Sellers shall cause
Skyware to prepare and timely file all Tax Returns the due date of which is on
or prior to the Closing Date. The Sellers shall cause Skyware to pay all Taxes
owed with respect to such Tax Returns. The Purchaser shall prepare and timely
file, or cause to be prepared and timely filed, all Tax Returns of Skyware that
are due with respect to any Pre-Closing Tax Period or Straddle Period and
required to be filed after the Closing Date. (“Pre-Closing Tax Period”
means any taxable period ending on or before the Closing Date.)  At least fifteen (15) days before the due
date for such Tax Returns, the Purchaser shall inform the Sellers of the
amount of all Taxes imposed on Skyware with respect to such Tax Returns (in the
case of a Tax Return for a Straddle Period, to the extent such Taxes relate to
the Pre-Closing Straddle Period). The Sellers may dispute the calculation
of such amount with the Purchaser until the date that is five (5) Business
Days before the due date for such Tax Returns, in which case the Sellers and
the Purchaser shall reasonably cooperate to finally determine such amount. The
Sellers shall issue a check to the Purchaser to pay such amount (in the case of
a dispute, the amount finally determined by the Sellers and the Purchaser) at
least 3 Business Days before the date the Taxes shown on such Tax Returns are
required to be paid.


 


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(e)                          For purposes of this Agreement,
the portion of Tax with respect to the income, property or operations of
Skyware  that is attributable to any
Tax period that begins on or before the Closing Date and ends after the Closing
Date (a “Straddle Period”) will be apportioned between the period of the
Straddle Period that extends before the Closing Date through the Closing Date
(the “Pre-Closing Straddle Period”) and the period of the Straddle
Period that extends from the day after the Closing Date to the end of the
Straddle Period (the “Post-Closing Straddle Period”) in accordance with
this Section 6.10(e). The portion of such Tax attributable to the
Pre-Closing Straddle Period will (i) in the case of any Taxes other than
sales or use taxes, value-added taxes, employment taxes, withholding taxes, and
any Tax based on or measured by income, receipts or profits earned during a
Straddle Period, be deemed to be the amount of such Tax for the entire taxable
period multiplied by a fraction, the numerator of which is the number of days
in the Pre-Closing Straddle Period and denominator of which is the number of
days in the Straddle Period, and (ii) in the case of any sales or use
taxes, value-added taxes, employment taxes withholding taxes, and any Tax based
on or measured by income, receipts or profits earned during a Straddle Period,
be deemed equal to the amount that would be payable if the Straddle Period
ended on and included the Closing Date. The portion of Tax attributable to a
Post-Closing Straddle Period will be calculated in a corresponding manner.


 


(f)                            Notwithstanding anything to
the contrary in Article XII, the Purchaser at its own expense has
the right to represent the interests of Skyware before the relevant
Governmental Authority with respect to any inquiry, audit, assessment,
Proceeding or other similar event relating to a Straddle Period (a “Straddle
Period Tax Matter”) and has the right to control the defense, compromise or
other resolution of any such Straddle Period Tax Matter, including responding
to inquiries, filing Tax Returns and contesting, defending against and
resolving any assessment for additional Taxes or notice of Tax deficiency or
other adjustment of Taxes of, or relating to, such Straddle Period Tax Matter. If
the Sellers would be required to indemnify a Purchaser Indemnified Party
pursuant to Section 12.2
with respect to such Straddle Period Tax Matter then: (i) a representative
of the Sellers has the right (but not the duty) to participate in the defense
of such Straddle Period Tax Matter and to employ counsel, at its own expense,
separate from counsel employed by the Purchaser, and (ii) the Purchaser
shall not enter into any settlement of or otherwise compromise any such
Straddle Period Tax Matter to the extent that it adversely affects the
indemnification obligations of the Sellers hereunder without the prior written
consent of the representative of the Sellers, which consent shall not be
unreasonably withheld or delayed.


 


(g)                         The provisions of this
Agreement related to the Transferred Real Property located in Ontario are
subject to the express condition that same be effective only if the subdivision
control provisions of the Planning Act (Ontario) are complied with.


 


(h)                         Andrew Canada Inc. and the
Purchaser shall elect jointly pursuant to the provisions of subsection 167(1) of
the Excise Tax Act (Canada) (the “ETA”), by completing and filing all
prescribed forms and related documents in such manner and at such time as is
prescribed, so that no Tax will be payable under the ETA in respect of


 


57

















 


the transfer of the Canadian related Assets. The
Purchaser and the Sellers agree that the transactions contemplated under
this Agreement should not attract any goods and services tax or harmonized
sales tax (“GST”) under Part IX of the ETA by virtue of
subsection 167.1 of the ETA, or otherwise. Notwithstanding the
foregoing, the Purchaser acknowledges to, and agrees with, the Sellers
that the Purchase Price is exclusive of any applicable GST and, if applicable,
is calculated in addition to the Purchase Price at the appropriate ad valorem rate. The Purchaser shall
indemnify and hold the Sellers harmless from and against any and all GST
that may arise or result in connection with the transactions contemplated
herein, including any fines, interest, penalties on or in respect of, or in
lieu of, or for non-collection of, GST. This indemnity shall include, without
limitation, reasonable expenses of investigation and legal fees and expenses in
connection with any assessment, claim, demand, action or Proceeding against
the Sellers in respect of the foregoing. The Purchaser shall indemnify
the Sellers within six (6) Business Days of written notice by Andrew
to the Purchaser of any indemnified amounts owing or of any such
assessment, claim, demand, action or Proceeding against the Sellers for
any such indemnified amounts. This indemnity shall continue in full force and
effect subsequent to and notwithstanding the expiration or termination of this
Agreement and shall survive the Closing of the transactions contemplated by
this Agreement  and shall expire on the date of
the expiration of the applicable statute of limitation under the ETA. Subject to
the Purchaser’s foregoing indemnity, the Sellers shall agree to not charge
and collect any GST on the Purchase Price hereunder.


 


(i)                             Andrew Canada Inc. and the
Purchaser agree to execute and file on a timely basis and in the form prescribed
(if any) such joint Tax elections as reasonably requested by either the
Purchaser or Andrew Canada Inc., specifying elected amounts that are mutually
agreeable to Purchaser and Seller.


 


6.11                           Agreement
Not to Compete.


 


(a)                          For a period of five (5) years
from the Closing Date, the Sellers shall not, and shall cause their Affiliates
not to, (A) directly or indirectly engage in the manufacture and sale of
products that are (1) substantially similar in form, function and
application with Existing Products, and (2) that are competitive with such
Existing Products from the perspective of an end-user thereof; or (B) solicit
for employment or hire any employee of the Purchaser or former employee of any
Seller hired by the Purchaser, including any employees that are Transferred US
Employees, UK Employees and Transferred Canadian Employees, whose annual salary
exceeds or exceeded $50,000 at any time during their employment with the
Purchaser or any Seller, respectively; provided, however, that
this Agreement shall not prohibit soliciting the employment or hiring of any
such employee who has been terminated by the Purchaser or its Affiliates; and provided,
further, that the placement of advertisements in newspapers or journals
of general circulation not directed or targeted to employees of the Purchaser
or any of its Affiliates shall not constitute solicitation for purposes of this
Section 6.11(a).


 


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(b)                         Notwithstanding the terms of Section 6.11(a),
nothing in Section 6.11(a) shall prohibit or otherwise
restrict any Seller or any Affiliates of any Seller from:


 


(i)                                     acquiring the
whole or any part of a Person which carries on all or a portion of the
Business or the whole or any part of a business which includes the
carrying on of all or a portion of the Business, except (A) that where
fifty percent (50%) or more of the annual revenues of the Person or of the
business acquired as set out in the latest audited or otherwise available
financial statements of that Person or business is derived from the Business,
such Seller or the applicable Affiliate shall (i) enter into a definitive
agreement for the disposition of such business within sixty (60) days from the
date such business was acquired by such Seller or its Affiliates, and (ii) shall
have effected the aforementioned disposition within one-hundred and eighty
(180) days from the date such business was acquired by such Seller or its
Affiliates, and (B) where (1) less than fifty percent (50%) but more
than $20 million of the revenues of the Person or of the business acquired as
set out in the latest audited or otherwise available financial statements of
that Person or business is derived from the Business, or (2) less than
fifty percent (50%) and less than $20 million of the revenues of the Person or
of the business acquired as set out in the latest audited or otherwise
available financial statements of that Person or business is derived from the
Business, such Seller or the applicable Affiliate shall follow the procedures
described in Section 6.11(c) with respect to such Business; or


 


(ii)                                  owning (A) less
than an aggregate of five percent (5%) of any class of stock of a Person
engaged, directly or indirectly, in all or a portion of the Business; or (B) less
than five percent (5%) in value of the Indebtedness of a Person engaged,
directly or indirectly, in all or a portion of the Business.


 


(c)                          (i)                                     In the event that
any Seller or any Affiliate of any Seller acquires a Business described in Section 6.11(b)(i)(B)(1) (in
each case, a “Major Competing Business”) prior to the date that is five (5) years
after the Closing Date, Andrew shall, as promptly as reasonably practicable,
dispose of the Major Competing Business to a third party (which third party may be
the Purchaser) in a sale process to be conducted in Andrew’s reasonable
discretion; provided, that, a definitive agreement with respect to such
disposition shall be executed within six (6) months of the acquisition of
the Major Competing Business and such disposition shall be consummated within
twelve (12) months of the acquisition of the Major Competing Business; and provided,
further, that such sale process shall be conducted by, or on behalf of,
Andrew in good faith and each bidder (including the Purchaser, as the case may be
shall be treated at arms-length by Andrew.


 


(ii)                                  In the event that any
Seller or any Affiliate of any Seller acquires a Business described in Section 6.11(b)(i)(B)(2) (in
each case, a “Minor Competing Business”) prior to the date that is five (5) years
after the Closing Date, such Seller or its Affiliate, shall provide Purchaser
with reasonable financial information with respect to such Minor Competing
Business, and shall offer the Purchaser the opportunity to purchase the Minor
Competing Business. The Purchaser may, within thirty (30) days after receipt of
financial information with respect to such Minor Competing Business, provide
written notice of its interest in acquiring the Minor Competing Business. In
the


 


59

















 


event the Purchaser does not provide written
notice of its interest in the Minor Competing Business within such thirty (30)
day period, the applicable Seller shall have no further obligation to dispose
of such Minor Competing Business under this Section 6.11. If
Purchaser provides written notice of its interest in the Minor Competing
Business within such thirty (30) day period, then Purchaser shall, at its sole
cost and expense, engage an Appraiser (the “First Appraiser”) to
determine an Appraised Value. If the applicable Seller agrees with the
Appraised Value determined by the First Appraiser, such Seller or its Affiliate
shall then offer the Purchaser the opportunity to purchase the Minor Competing
Business for a price equal to the Appraised Value determined by the First
Appraiser and on other terms and conditions to be mutually agreed between such
Seller or its Affiliate and the Purchaser. In the event that the applicable
Seller or its Affiliate does not agree with the Appraised Value determined by
the First Appraiser, then the applicable Seller shall, at its sole cost and
expense, engage a second Appraiser (the “Second Appraiser”) to determine
an Appraised Value. In the event that the Appraised Value determined by the
First Appraiser differs from the Appraised Value determined by the Second
Appraiser, the applicable Seller and Purchaser shall negotiate in good faith to
determine a mutually satisfactory valuation with respect to the Minor Competing
Business; provided, that if the parties are unable to reach agreement on
such valuation within thirty (30) days, then an arbitrator shall be appointed
pursuant to the rules of the American Arbitration Association. The
arbitrator shall, as promptly as practicable and in no event later than ninety
(90) days following its receipt of the competing Appraised Values, deliver to
the Purchaser and the applicable Seller a report (the “Appraisal Report”), in which the
arbitrator shall determine the final Appraised Value, such Appraisal Value to
be no greater than the higher of the First Appraisal and the Second Appraisal
or less than the lower of the First Appraisal and the Second Appraisal. The
Appraisal Report shall set forth, in reasonable detail, the arbitrator’s
determination with respect to the final Appraised Value, together with
supporting calculations and considerations. The Appraisal Report shall be final
and binding on the parties, absent arithmetical error, and shall be deemed a
final arbitration award that is enforceable against each of the parties in any
court of competent jurisdiction. Each of the Purchaser and Seller shall bear
and pay such percentage of the fees and disbursements of the arbitrator as are
assigned by the arbitrator based upon the difference between the Appraised
Value as determined by the First Appraiser and as determined by the arbitrator,
on the one hand, and the difference between the Appraised Value as determined
by the Second Appraiser and as determined by the arbitrator, on the other hand.
Once a final Appraised Value is agreed upon in accordance with this Section 6.11(c),
then the applicable Seller or Affiliate and Purchaser shall negotiate in good
faith in order to consummate Purchaser’s acquisition of the Minor Competing
Business as promptly as reasonably practicable. Once the Appraised Value is
finally determined pursuant to this Section 6.11(c), the applicable
Seller shall offer to sell the Minor Competing Business to Purchaser at such
Appraised Value. The Purchaser may, within thirty (30) days after receipt of
such offer, provide written notice of its decision to accept such offer. In the
event that Purchaser accepts such offer by delivering written notice to the
applicable Seller within such thirty (30) day period, the applicable Seller and
Purchaser shall negotiate in good faith in order to consummate Purchaser’s
acquisition of the Minor Competing Business at a price equal to the Appraised
Value as finally


 


60

















 


determined in accordance with this Section 6.11(c) and
on other terms as are mutually agreed between the applicable Seller and
Purchaser as promptly as reasonably practicable. In the event the Purchaser
does not provide written notice of its acceptance of the offer within such
thirty (30) day period, the applicable Seller shall have no further obligation
to dispose of such Minor Competing Business under this Section 6.11.


 


(d)                         Notwithstanding any other
provision of this Agreement, it is understood and agreed that the remedy of
indemnity payments pursuant to Article XII and other remedies at
law may be inadequate in the case of any breach of the covenants contained
in Section 6.11(a). Accordingly, the Purchaser shall be entitled to
seek equitable relief, including the remedy of specific performance, with
respect to any breach or attempted breach of such covenants.


 


Notwithstanding
anything to the contrary, Section 6.11(a) shall
not apply to (i) PCT International, Inc. or its Subsidiaries, and (ii) any
Minor Competing Business, so long as Seller and its Affiliates have complied
with the terms of Section 6.11(c) hereof with respect to such
Minor Competing Business; provided that Section 6.11 shall
apply to any acquisition made by such Minor Competing Business.


 


6.12                           Payment
of Related-Party Indebtedness. Except as set forth on Schedule 6.12,
the Sellers will cause all Indebtedness owed (i) to Skyware by any Seller
or an Affiliate of any Seller or (ii) by Skyware to any Seller or an
Affiliate of any Seller to be settled at or prior to the Closing Date without
any liability, including with respect to Taxes, on Skyware.


 


6.13                           Payment
of Other Skyware Indebtedness. The Sellers will cause any and all
Indebtedness of Skyware not otherwise settled pursuant to Section 6.12,
including the Indebtedness set forth on Schedule 4.21, to be
settled at or prior to the Closing Date without any liability, including with
respect to Taxes, on Skyware.


 


6.14                           Deferred
Transaction. Upon the date that the last occurring Transition Service (as
such term is defined in the Transition Services Agreement) related to the
Deferred Transaction Assets is completed (such date, the “Deferred
Transaction Date”), each Seller shall sell, assign, transfer and deliver to
the Purchaser, and the Purchaser shall purchase and acquire from such Seller,
and take assignment and delivery from such Seller of, all of such Seller’s
right, title and interest in and to the Deferred Transaction Assets, free and
clear of all Liens (other than Permitted Liens) in exchange for the payment
provided in Section 3.1(e) hereof. Each Seller and Purchaser
shall use its reasonable best efforts to cause the completion of the
aforementioned Transition Services to be achieved as promptly as practicable
after the Closing Date.


 


6.15                           Transferred
Intellectual Property on Record. With respect to any of the Transferred
Intellectual Property that is or should have been listed on Schedules 1.1H
or 1.1K and that as of the date hereof appear on any public records as
being owned by any Person other than Andrew, Andrew shall promptly record in
such public record(s) evidence, in a form reasonably satisfactory to
Purchaser, of Andrew’s ownership of all right, title and interest therein free
and clear of all Liens. Andrew shall use its best efforts to complete such
recording activities before the Closing.


 


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6.16                           Registration
of Transferred Owned Property. Where the Transferred Owned Real Property is
under electronic registration in Ontario, the following shall apply:
 Where the transaction will be completed by electronic registration
pursuant to Part III of the Land Registration Reform Act, R.S.O.
1990, Chapter L4 and the Electronic Registration Act, S.O. 1991, Chapter 44,
and any amendments thereto, the Seller and Purchaser acknowledge and agree that
the deliveries set out in Sections 9.2, 9.3 and elsewhere in this
Agreement that are intended to be electronically registered in Ontario (the “Requisite
Deliveries”) will: (a) occur prior to the registration of the
Transfer/Deed (and any other documents intended to be registered in connection
with the completion of this transaction) and (b) be held in escrow and not
released except in accordance with the terms of the applicable document
registration agreement. Unless otherwise agreed to by counsel for the parties,
the exchange of the Requisite Deliveries will occur on Closing at the offices
of the Purchaser’s solicitors. Purchaser shall cause its solicitor to prepare
and deliver the applicable document registration agreement to Seller’s
solicitor at least five (5) Business Days before the day of Closing.


 


6.17                           Spin
Lathe. As promptly as practicable after the date hereof, Purchaser shall
inspect the spin lathe transferred to the Purchaser and located at Sellers’
Brownsville, Texas facility and related assorted equipment located at Sellers’
other facilities (collectively, the “Brownsville Spin Lathe”) to
determine whether such equipment is in good working order and possesses the
same production capabilities (including quality and quantity) with respect to
products currently produced for the Business as currently possessed by the spin
lathe located in Reynosa, Mexico (the “Reynosa Spin Lathe”). In the
event that the Brownsville Spin Lathe is not in good working order, Sellers
shall reimburse Purchaser for the costs to repair the Brownsville Spin Lathe to
the extent such costs exceed $10,000. In the event that the Brownsville Spin
Lathe does not possess the production capabilities (including quality and
quantity) with respect to products currently produced for the Business as
currently possessed by the Reynosa Spin Lathe, Sellers, at their discretion,
shall either (i) make such capital expenditures to the Brownsville Spin
Lathe to conform the Brownsville Spin Lathe to substantially the same
production capabilities (including quality and quantity) relating to products
produced for the Business as the Reynosa Spin Lathe, (ii) provide product
of the same quality and quantity produced by the Reynosa Spin Lathe to the
Purchaser at Sellers’ cost, or (iii) replace the Brownsville Spin Lathe
with a spin lathe in good working order that is capable of producing products
currently produced by the Business in substantially the same quantity and
quality produced by the Reynosa Spin Lathe for the Business.


 


6.18                           Financing.
Purchaser shall, as promptly as practicable after the date hereof, obtain
commitment letters for debt financing which, together with the commitment
letter for equity financing that was executed as of the date hereof, shall
provide for the funds necessary to consummate the transactions contemplated
hereby (together with any term sheets, annexes or appendices relating thereto,
the “Commitment Letter”). Purchaser shall provide Andrew with true,
accurate and complete copies of the Commitment Letters immediately upon
obtaining such Commitment Letter.


 


6.19                           Smithfield
Lease. From and after the Closing, each of Purchaser and Andrew shall use
its reasonable best efforts to obtain a complete and total release of Andrew’s
obligations under the Smithfield Lease; provided, however, that
neither Purchaser nor Andrew shall be required to pay or commit to pay any
amount to (or incur any obligation in favor of) the


 


62

















 


Landlord (as such term is defined in the
Smithfield Lease) in order to obtain such release. In the event that the
parties are unable to obtain a complete and total release of Andrew’s
obligations under the Smithfield Lease, Purchaser agrees that:


 


(a)                          it shall not exercise the
Extension Option (as such term is defined in the Smithfield Lease) and that it
shall not amend, modify or extend the Smithfield Lease (or agree to any
amendment, modification or extension) in any manner adverse to Andrew
(including causing any expansion or increase of Andrew’s obligations
thereunder);


 


(b)                         it shall provide written
notice to Andrew no later than one hundred eighty (180) days prior to the
commencement of the period during which the early termination option set forth
in section 33.2 of the Smithfield Lease is exercisable indicating whether
Purchaser intends to exercise such termination option (the “Early
Termination Notice”). In the event that Purchaser elects not to exercise
the early termination option under the Smithfield Lease and elects instead to
operate under the Smithfield Lease for the balance of the term of that lease,
Andrew shall have the right, in its sole discretion, to request Purchaser to
promptly obtain a complete and total release of all of Andrew’s obligations
under the Smithfield Lease for the remaining term of the lease and Andrew will
pay into a newly established escrow account an amount equal to the amount
payable pursuant to section 33.2 of the Smithfield Lease assuming the
early termination option is exercised as early as allowable under the lease;
with such amount becoming payable to the Purchaser one Business Day after the
earliest date that the early termination option can be exercised only so long
as Purchaser obtains a complete and total release of all of Andrew’s
obligations under the Smithfield Lease for the remaining term of the lease
prior to that date. Purchaser shall not be entitled to any payment pursuant to
the foregoing, and the escrowed amounts shall be immediately released to
Andrew, in the event that Purchaser fails to obtain the complete and total
release of Andrew’s obligations for the remainder of the Smithfield Lease on or
before the earliest date that the early termination option can be exercised
under the Smithfield Lease; and


 


(c)                          other than in connection with
a good faith dispute between Purchaser and Smithfield Business Park, LLC in its
capacity as lessor under the Smithfield Lease, in the event that (i) Purchaser
(A) is not current on rental payments or is otherwise in default (after
the expiration of any applicable cure periods) under the Smithfield Lease, in
each case, for a period of three (3) consecutive months, or (B) has
failed to reimburse Andrew for amounts equal to three (3) or more total
months of rent under the Smithfield Lease paid by Andrew under the Smithfield
Lease after the Closing Date, or (ii) the lessor seeks payment from Andrew
for amounts due and owing by Purchaser under the Smithfield Lease for three (3) or
more months of rent in the aggregate, and Andrew makes such payment or cures
such default, upon the payment by Andrew of such outstanding amounts required
to make Purchaser current or cure any defaults under the Smithfield Lease,
Andrew shall have the option, at its sole discretion, to require Purchaser to
exercise the early termination option under section 33.2 of the Smithfield
Lease (and Andrew shall reimburse Purchaser for the cost of the exercise of
such early termination option). In the event that any of the circumstances
described in clauses (i) or (ii) of the immediately preceding
sentence occurs, other than in connection with a good faith dispute between
Purchaser and Smithfield Business Park, LLC in its capacity


 


63

















 


as lessor under the Smithfield Lease,
immediately upon such occurrence, Andrew shall be deemed to have been
appointed, without any further action on the part of any party hereto,
Purchaser’s true and lawful attorney, with full power and authority to take any
action necessary, in Andrew’s sole discretion and at its expense, to exercise
on behalf of Purchaser Purchaser’s early termination option under section 33.2
of the Smithfield Lease.


 


6.20                           Payments
Regarding Transferred Owned Real Property in Canada. With respect to the
Transferred Owned Real Property located in Canada, Andrew shall pay the
Purchaser’s reasonable legal fees (up to an amount not to exceed $15,000.00)
incurred in the preparation of the title commitments and basic premiums for
standard title policies, and the Purchaser shall pay for the cost of any
extended coverage or any endorsements (including any modification of any “survey
exception”) to the title policies requested by the Purchaser.


 


ARTICLE VII



CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER


 


The obligations of the Purchaser under Articles II, III,
and IX are subject to the satisfaction or waiver by the Purchaser of the
following conditions precedent on or before the Closing Date:


 


7.1                                 Representations
and Warranties. The representations and warranties of the Sellers contained
herein shall have been accurate, true and correct in all respects on and as of
the date hereof, and, except to the extent that any such representation or
warranty is made solely as of the date hereof or as of another date earlier
than the Closing Date, shall also be accurate, true and correct in all respects
on and as of the Closing Date, except to the extent that the failure of such
representations and warranties to be true and correct as of the date hereof or
as of the Closing Date has not caused a Business Material Adverse Effect or a
Seller Material Adverse Effect.


 


7.2                                 Compliance
with Agreements and Covenants. Each Seller shall have in all material
respects performed and complied with all of its covenants and obligations
contained in this Agreement to be performed and complied with by it on or prior
to the Closing Date.


 


7.3                                 Certificate
of Compliance. The Sellers shall have delivered to the Purchaser a
certificate of each of the Sellers dated as of the Closing Date, executed by a
duly authorized officer of each of the Sellers, certifying as to the
satisfaction of the conditions set forth in Section 7.1 and Section 7.2.


 


7.4                                 No
Injunctions or Other Legal Restraints. No injunction or other legal
restraint or prohibition enacted, entered, promulgated, enforced or issued by
any Governmental Authority preventing the consummation of the Closing shall
have come into effect after the date of this Agreement and continue to be in
effect.


 


7.5                                 Absence
of Proceedings. There shall not be pending any Proceeding brought by any
Governmental Authority with at least a reasonable possibility of success
challenging or seeking to restrain or prohibit the Closing or any other
transaction contemplated by this Agreement or the Related Agreements or seeking
to obtain from the Purchaser or any of its


 


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Affiliates in connection with the Closing any
damages that are material in relation to the Purchaser and its Affiliates,
taken as a whole.


 


7.6                                 Related
Agreements. The Purchaser shall have received from each Seller a duly
executed copy of each Related Agreement to which such Seller is a party.


 


7.7                                 Release
of Liens. The Liens on the Assets, other than Permitted Liens, shall have
been terminated and released.


 


7.8                                 Title
Policies. Chicago Title Insurance Company (or such other title insurance
company as may be acceptable to the Purchaser in its reasonable
discretion) shall have issued to the Purchaser title commitments (the “Title
Commitments”) covering the Transferred Owned Real Property located within
the United States and shall be irrevocably prepared to issue to the Purchaser
ALTA (or such other forms as are available in the applicable jurisdiction)
owner’s title insurance policies, in such amounts as the Purchaser may reasonably
determine, insuring fee simple title to the Transferred Owned Real Property
located within the United States, subject only to the Permitted Liens (each, a “Title
Policy”). Andrew shall pay the basic premium for standard Title Policies,
and the Purchaser shall pay for the cost of any extended coverage or any
endorsements (including any modification of any “survey exception”) to the
Title Policies requested by the Purchaser.


 


7.9                                 Material
Adverse Effect. Since the date hereof, there shall have occurred no
Business Material Adverse Effect or Seller Material Adverse Effect.


 


7.10                           Lender
Documents. The Sellers shall have delivered subordination agreements,
non-disturbance agreements, landlord waivers, and such other documents as the
Purchaser’s lenders may reasonably request.


 


7.11                           Other
Closing Deliveries. Sellers shall have delivered to Purchaser all closing
deliveries required to be delivered by Seller in accordance with Section 9.2.


 


ARTICLE VIII



CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLERS


 


The obligations of each Seller under Articles II, III and IX
are subject to the satisfaction or waiver by such Seller of the following
conditions precedent on or before the Closing Date:


 


8.1                                 Representations
and Warranties. The representations and warranties of the Purchaser
contained herein shall have been accurate, true and correct in all material
respects (and in all respects with respect to those representations and
warranties qualified by materiality, or similar qualification) on and as of the
date hereof, and, except to the extent that any such representation or warranty
is made solely as of the date hereof or as of another date earlier than the
Closing Date, shall also be accurate, true and correct in all material respects
on and as of the Closing Date.


 


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8.2                                 Compliance
with Agreements and Covenants. The Purchaser shall have in all material
respects performed and complied with all of its covenants and obligations contained
in this Agreement to be performed and complied with by it on or prior to the
Closing Date.


 


8.3                                 Certificate
of Compliance. The Purchaser shall have delivered to Andrew a certificate
of the Purchaser dated as of the Closing Date, executed by the Purchaser,
certifying as to the satisfaction of the conditions set forth in Sections
8.1 and 8.2.


 


8.4                                 No
Injunctions or Other Legal Restraints. No injunction or other legal
restraint or prohibition enacted, entered, promulgated, enforced or issued by
any Governmental Authority preventing the consummation of the Closing shall
have come into effect after the date of this Agreement and continue to be in
effect.


 


8.5                                 Absence
of Proceedings. There shall not be pending any Proceeding brought by any
Governmental Authority with at least a reasonable possibility of success
challenging or seeking to restrain or prohibit the Closing or any other
transaction contemplated by this Agreement or the Related Agreements or seeking
to obtain from any Seller or any of its Affiliates in connection with the
Closing any damages that are material in relation to the Sellers and their
Affiliates, taken as a whole.


 


8.6                                 Related
Agreements. Andrew shall have received from the Purchaser a duly executed
copy of each Related Agreement to which the Purchaser is a party.


 


8.7                                 Other
Closing Deliveries. The Purchaser shall have delivered to Andrew all
closing deliveries required to be delivered by the Purchaser in accordance with
Section 9.3.


 


ARTICLE IX



CLOSING


 


9.1                                 Closing.
Subject to Articles VII and VIII, the Closing shall take place at
the offices of Mayer Brown LLP, 71 South Wacker Drive, Chicago, Illinois 60606,
at 10:00 a.m. (central standard time) on November 30, 2007 or, if all
the conditions set forth in Articles VII and VIII have not been
satisfied (or, to the extent permitted, waived by the parties entitled to the
benefits thereof) on or prior to such date, then on the second Business Day
after all the conditions set forth in Articles VII and VIII have
been satisfied (or, to the extent permitted, waived by the parties entitled to
the benefits thereof); provided, that the Closing Date may be
varied by the written mutual agreement of the Purchaser and the Sellers. Once
the Closing occurs, the Closing, and all transactions to occur at the Closing,
shall be deemed to have taken place at, and shall be effective as of, 12:01 a.m.
(central standard time) on the Closing Date.


 


9.2                                 Deliveries
by the Sellers. At the Closing, each Seller (as applicable) shall deliver,
or cause its Affiliates (as applicable) to deliver, to the Purchaser the
following:


 


(a)                          the Bill of Sale duly
executed by such Seller or such Affiliate;


 


(b)                         the Assignment and Assumption
Agreement duly executed by such Seller or such Affiliate;


 


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(c)                          the Special Warranty Deeds
duly executed by such Seller or such Affiliate for each Transferred Owned Real
Property in each case subject to all matters of record in the applicable
recording jurisdiction, to the extent the same are valid, subsisting and affect
the applicable property, as well as all matters which a current, accurate
survey of the applicable property would reveal;


 


(d)                         the Patent Assignment duly
executed by such Seller or such Affiliate;


 


(e)                          the Trademark Assignment duly
executed by such Seller or such Affiliate;


 


(f)                            the Transition Services
Agreement duly executed by such Seller or such Affiliate;


 


(g)                         the License Agreements and the
Trademark License Agreement duly executed by such Seller or such Affiliate;


 


(h)                         a notarial transfer deed
evidencing the transfer of all of the Transferred Shares;


 


(i)                             resignations, effective as
of the Closing Date, of all members of the supervisory board and the board of
directors of Skyware;


 


(j)                             a certificate of the
secretary or an assistant secretary of such Seller certifying resolutions of
the board of directors of such Seller, approving and authorizing the execution,
delivery and performance by such Seller of this Agreement and its respective
Related Agreements and the consummation by such Seller of the transactions
contemplated hereby and thereby (together with an incumbency and signature
certificate regarding the officer signing on behalf of such Seller);


 


(k)                          a non-foreign person
affidavit of each U.S. Seller that complies with the requirements of Section 1445
of the Code, executed under penalties of perjury and reasonably satisfactory to
the Purchaser;


 


(l)                             the Stockholders Agreement
duly executed by such Sellers in receipt of Parent Stock;


 


(m)                       a valid Purchase Certificate
from the Ontario Workplace Safety and insurance Board confirming that the
Seller’s account is in good standing;


 


(n)                         in respect of the Canadian
related Assets, Andrew Canada Inc. shall deliver to the Purchaser at Closing a
clearance certificate under section 6 of the Retail Sales Tax Act
(Ontario);


 


(o)                         a sublease agreement related
to the Garner Property duly executed by Seller or such Affiliate;


 


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(p)                         a subordination agreement duly
executed by Andrew in a form reasonably satisfactory to the Purchaser’s
lender; and


 


(q)                         such other documents and
instruments as the Purchaser reasonably requests to consummate the transactions
contemplated hereby.


 


9.3                                 Deliveries
by the Purchaser. At the Closing, the Purchaser shall deliver to Andrew the
following:


 


(a)                          the Assignment and Assumption
Agreement duly executed by the Purchaser;


 


(b)                         the Transition Services
Agreement duly executed by the Purchaser;


 


(c)                          the License Agreements duly
executed by the Purchaser;


 


(d)                         a certificate of the secretary
or an assistant secretary of the Purchaser certifying resolutions of the board
of directors of the Purchaser approving and authorizing the execution, delivery
and performance by the Purchaser of this Agreement and its Related Agreements
and the consummation by the Purchaser of the transactions contemplated hereby
and thereby (together with an incumbency and signature certificate regarding
the officer signing on behalf of the Purchaser);


 


(e)                          the Cash Payment in
accordance with Sections 3.1 and 13.4;


 


(f)                            the Parent Shares;


 


(g)                         the Stockholder Agreement duly
executed by Parent;


 


(h)                         a sublease agreement related
to the Garner Property duly executed by Purchaser; and


 


(i)                             such other documents and
instruments as the Sellers reasonably request to consummate the transactions
contemplated hereby.


 


ARTICLE X



TERMINATION


 


10.1                           Termination.
This Agreement may be terminated, and the transactions contemplated herein
may be abandoned, at any time on or prior to the Closing Date:


 


(a)                          with the mutual written consent
of Andrew and the Purchaser;


 


(b)                         by Andrew or the Purchaser, if
the Closing shall not have taken place on or prior to December 30, 2007; provided,
that the right to terminate this Agreement under this Section 10.1(b) shall
not be available to (i) the Sellers if the failure of the Sellers to
fulfill any of their obligations under this Agreement caused the failure of the


 


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Closing to occur on or prior to such date or (ii) the
Purchaser if the failure of the Purchaser to fulfill any of its obligations
under this Agreement caused the failure of the Closing to occur on or prior to
such date;


 


(c)                          by the Purchaser, if there
shall have been a material breach of any representation or warranty of the
Sellers hereunder, or a material breach of any covenant or obligation of the
Sellers hereunder, and such breach (i) would reasonably be expected to
lead to the failure of a condition set forth in Article VII hereof,
and (ii) shall not have been remedied within thirty (30) days after
receipt by the Sellers of a notice in writing from the Purchaser specifying the
breach and requesting such breach be remedied; or


 


(d)                         by Andrew, if there shall have
been a material breach of any covenant, obligation, representation or warranty
of the Purchaser hereunder, which breach shall not have been remedied within
thirty (30) days after receipt by the Purchaser of notice in writing from the
Sellers specifying the breach and requesting such breach be remedied.


 


In the event of termination by Andrew or the Purchaser pursuant to this
Section 10.1 (other than Section 10.1(a)), written
notice thereof shall be given to the other party hereto.


 


10.2                           Effect
of Termination. If this Agreement is terminated pursuant to Section 10.1,
all obligations of the parties hereunder shall terminate, except for the
obligations set forth in Sections 6.5 (Brokers), 6.8
(Confidentiality), 13.1 (Expenses) and 13.8 (Publicity), each of
which shall survive the termination of this Agreement, and except that no such
termination shall relieve any party from liability for any prior intentional
breach of this Agreement.


 


ARTICLE XI



EMPLOYEES AND EMPLOYEE BENEFITS


 


11.1                           Offers
of Employment to Current US Employees, Current Canadian Employees and Current
Other Employees.


 


(a)                          Offers of Employment to
Current US Employees. Effective as of the Closing Date, the employment by
the Sellers and their Affiliates of each Current US Employee shall terminate. Not
less than ten days prior to the Closing Date, the Purchaser shall offer employment,
effective as of the Closing, to each Current US Employee listed on  Schedule 11.1(a)(i), which
offers of employment shall be at substantially comparable positions and levels
of compensation in the same general geographic work location as applied to such
employees immediately prior to the Closing, and with employee benefits
substantially the same, in the aggregate, as the employee benefits described in
Schedule 4.14(a)(1) applicable to Current US Employees,
excluding, however, for all purposes of this sentence the benefits under
the Executive Severance Benefit Plan (amended and restated effective May 14,
2004), the Andrew Executive Officer Severance Benefit Plan, effective May 10,
2007, the 1988 and 2000 Management Incentive Programs, the 2005 Long-Term
Incentive Plan, the Postretirement Health Benefits Policy, the Employee
Retirement Benefit Restoration


 


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Plan (established effective October 1,
1997; amended and restated effective October 1, 1998, January 1,
2000, and October 1, 2004), the Employee Assistance Plan, the Relocation
Plan, the Education Assistance Plan, the Andrew Employee Severance Plan,
effective May 1, 2007, the Business Improvement Process Plan, the FY ‘06
Long Term Cash Plan, the Reward and Recognition Plan, the Performance Cash
Agreement, dated November 16, 2005, between Andrew Corporation and a
specified employee (as set forth in Schedule 4.14(a)(1)), the
Andrew Consulting/Support Services Agreement Template and the individual
retention letter agreements described in Schedule 4.14, each of
which offers shall also be subject to the terms and conditions of this Article XI
with respect to Current US Employees; provided,
however, that nothing in this Section 11.1(a) shall be
construed as modifying or in any way negating or reducing the Purchaser’s
severance obligations set forth in Section 11.13 and further
provided that the Purchaser’s offers of employment to Current US Employees
shall provide for severance benefits in accordance with Section 11.13.
Each such Current US Employee who accepts the Purchaser’s offer of
employment, shall become an employee of the Purchaser and its Affiliates as of
the Closing and shall be referred to herein as a “Transferred US Employee”.
The Sellers shall retain, bear and discharge all employment liabilities with
respect to each Current US Employee who is absent from active employment on the
Closing Date by reason of a short-term or long-term disability or by reason of
a workers compensation injury or illness, a list of such employees to be set
forth on Schedule 11.1(a)(ii); provided, however,
that if any such employee is able to return to active employment (with or
without a reasonable accommodation, which may include, without limitation,
a light duty assignment) within one year of the Closing Date, the
Purchaser shall offer such employee employment (with the applicable
accommodation, if any) in accordance with the terms of this Section 11.1(a) and
the terms and conditions of this Article XI. Each such Current US
Employee described in the preceding sentence who accepts the Purchaser’s offer
of employment shall become an employee of the Purchaser and its Affiliates as
of the employee’s date of acceptance and shall, from and after such date, be a “Transferred
US Employee,” and the Purchaser shall assume, bear and discharge all
employment liabilities with respect to such Transferred US Employee that arise
from and after such date. Notwithstanding the foregoing, the Purchaser will be
under no obligation to continue to employ any Transferred US Employee for any
period of time; provided, however, that the Purchaser shall
satisfy the severance obligations described in Section 11.13.


 


(b)                         Offers of Employment to
Current Canadian Employees. Not less than ten days prior to the Closing
Date, the Purchaser shall offer employment, effective as of the Closing, to
each Current Canadian Employee. Such offers of employment shall be on terms and
conditions substantially similar to the terms and conditions (including
geographic work location) on which such Employees are employed by the Sellers
or their Affiliates, as applicable, on the Closing Date. Without limiting the
foregoing, the Purchaser’s offers of employment shall be at substantially the
same position and level of compensation, and shall provide for employee
benefits substantially the same, in the aggregate, as the benefits described in
Schedule 4.14(a)(3)(c), as applied to such Employees immediately
prior to the Closing, provided, however, that the Purchaser shall
have no obligation to provide any individual retention benefits or programs,
and shall also be subject to the terms and conditions of this Article XI
with respect to


 


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Current Canadian Employees. The Purchaser’s
offers of employment shall be delivered to the Current Canadian Employees in a
written form (or forms) satisfactory to the Sellers. Each Current Canadian
Employee who accepts the Purchaser’s offer of employment, shall become an
employee of the Purchaser as of the Closing and shall be referred to herein as
a “Transferred Canadian Employee”. Unless otherwise specified,
references to “Transferred Canadian Employee” as used in this Article XI
shall refer only to Current Canadian Employees who accept the Purchaser’s offer
of employment. The Purchaser and/or one or more of its Affiliates agreeable to
the Sellers shall assume, bear and discharge all severance and termination
costs and liabilities, as determined by applicable Law, with respect to each
Current Canadian Employee who does not receive an offer of employment from the
Purchaser that satisfies the conditions of this Section 11.1(b). Notwithstanding
the foregoing, the Purchaser will be under no obligation to continue to employ
any Transferred Canadian Employee for any period of time; provided, however,
that the Purchaser shall satisfy the severance obligations described in Section 11.13.


 


(c)                          Offers of Employment to
Current Other Employees. The Purchaser shall offer employment to each
Current Other Employee. Such offers of employment shall be on terms and
conditions substantially similar to the terms and conditions (including
geographic work location) on which such employees are employed by the Sellers
or their Affiliates, as applicable, on the Closing Date. Without limiting the
foregoing, the Purchaser’s offers of employment shall be at substantially the
same position and level of compensation and benefits as applied to such employees
immediately prior to the Closing, shall also be subject to the terms and
conditions of this Article XI with respect to Current Other
Employees and shall in any event comply with applicable Law. Such offers of
employment shall be effective as of a date to be mutually agreed upon by the
Sellers and the Purchaser, but in no event later than 60 days after the Closing
Date (the “Other Employees’ Transfer Date”). Each such Current Other
Employee who accepts the Purchaser’s offer of employment shall become an
employee of the Purchaser and its Affiliates as of the Other Employees’
Transfer Date and shall, from and after such date, be a “Transferred Other
Employee,” and the Purchaser shall assume, bear and discharge all
employment liabilities with respect to such Transferred Other Employee from and
after such date. Notwithstanding the foregoing, the Purchaser will be under no
obligation to continue to employ any Transferred Other Employee for any period
of time; provided, however, that the Purchaser shall satisfy the
severance obligations described in Section 11.13.


 


11.2                           Seller
Benefit Plans. Following the Closing Date, each Seller or one or more of
its Affiliates shall retain sponsorship of the Seller Benefit Plans. Effective
as of the Closing Date, the participation of the Current US Employees and the
Current Canadian Employees in the Seller Benefit Plans shall terminate except
as otherwise may be required by applicable Law (e.g., COBRA, as
applicable). No Seller or Seller Affiliate shall have any obligation under or
with respect to any employee benefit plan, program, policy or arrangement
maintained by the Purchaser and its Affiliates (the “Purchaser Benefit Plans”).


 


11.3                           Service
Credit. The Transferred US Employees and the Transferred Canadian Employees
will receive credit for their service with the Sellers and their respective
Affiliates and


 


71

















 


their predecessors, as applicable, for
purposes of eligibility to participate in, and vest in benefits under, and for
purposes of vacation and PTO accruals under, the Purchaser Benefit Plans. The
Purchaser Benefit Plans shall not include a waiting or eligibility period or a
preexisting condition restriction or limitation (except to the extent any such
Transferred US Employee or Transferred Canadian Employee is subject to a
waiting or eligibility period or a preexisting condition restriction or
limitation under Seller Benefit Plans) and, to the extent that such Transferred
US Employees and Transferred Canadian Employees have satisfied any internal
limits, deductibles or co-payment requirements of such Seller Benefit Plans for
the year that includes the Closing Date, such amounts will be credited toward
the satisfaction of any such requirements under the Purchaser Benefit Plans.


 


11.4                           Individual Agreements and Continuation of
Benefits. Following the
Closing Date, the Purchaser shall, or shall cause its Affiliates to, honor and
maintain (in accordance with their terms) the individual agreements set forth
on Schedule 4.14(a) (whether written, oral, or implied) in
existence as of the date hereof between a Seller or any of its respective
Affiliates and a Transferred US Employee or a Transferred Canadian Employee,
without offset, deduction, counterclaim, interruption or deferment (unless
superseded by a subsequent agreement executed by the parties).


 


11.5                           Accrued
Salaries for Transferred US Employees and Transferred Canadian Employees. Sellers
and their Affiliates shall pay to the Transferred US Employees and the
Transferred Canadian Employees all salaries earned by the Transferred US
Employees and the Transferred Canadian Employees through the Closing Date.


 


11.6                           Welfare
Benefits. The Sellers and their Affiliates shall retain, bear and discharge
all liabilities for welfare benefit claims with respect to Transferred US
Employees and Transferred Canadian Employees (and their dependents) incurred
prior to the Closing Date under the Seller Benefit Plans that are Welfare Plans.
The Purchaser and its Affiliates shall cause the Purchaser Benefit Plans that
are Welfare Plans to bear and discharge all welfare benefit claims with respect
to the Transferred US Employees that are incurred on or after the Closing Date
and no Seller or any Seller Affiliate shall have any liability or responsibility
with respect to any such claim. For the purposes of this Section 11.6,
a claim shall be deemed incurred in accordance with the following:


 


(a)                          a medical, dental, vision or
flexible spending account (including medical, dental, vision and dependent care
flexible spending accounts) claim is incurred on the date the service is
rendered or the product is purchased;


 


(b)                         a life insurance claim is
incurred on the date of the individual’s death; and


 


(c)                          a short-term/long-term
disability claim is incurred on the date the individual becomes disabled under
the terms of the relevant plan or program (disregarding any elimination period
following the disability date during which the disabled individual is not
eligible to commence receipt of disability benefits), provided that if
the individual returns to employment after the Closing Date for a period of
time


 


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that would require a new elimination period
to be satisfied, any subsequent claim shall not be deemed to have been incurred
prior to the Closing Date.


 


11.7                           PTO
for Transferred US Employees. With respect to any accrued but unused paid
time off (“PTO”) to which any Transferred US Employee is entitled
pursuant to the PTO policy of the Sellers and their Affiliates applicable to
such Transferred US Employee immediately prior to the Closing Date (the “PTO
Policy”), the Sellers and their Affiliates shall pay in cash to each such
Transferred US Employee an amount equal to the wages relating to such PTO if
such payment is required under the terms of the PTO Policy or is otherwise
required by applicable Law.


 


11.8                           Vacation
for Transferred Canadian Employees. With respect to any accrued but unused
paid vacation time and/or unpaid vacation pay (as applicable) to which any Transferred
Canadian Employee is entitled pursuant to applicable Law or the vacation policy
of the Sellers and their Affiliates applicable to such Transferred Canadian
Employee immediately prior to the Closing Date (the “Canadian Vacation
Policy”), the Sellers and their Affiliates shall pay to the Purchaser by
way of a Purchase Price adjustment an amount equal to the wages relating to
such unused vacation time and/or unused vacation pay (as applicable) (the “Accrued
Vacation Payment”). The Purchaser covenants that it will pay vacation pay
to the Transferred Canadian Employees in a cumulative amount not less than the
Accrued Vacation Payment either at the times of their vacations, or upon
termination of employment, or otherwise as required by Law. For greater clarity,
no part of the Accrued Vacation Payment will be used by the Purchaser to
satisfy its obligations to Transferred Canadian Employees in respect of
vacation time or vacation pay earned by Transferred Canadian Employees after
the Closing Date.


 


11.9                           Cafeteria
Plan. Effective as of January 1, 2008, the Purchaser shall, or shall
cause an Affiliate of the Purchaser to, take all action necessary or otherwise
appropriate to have the entity employing Transferred US Employees adopt and
become a participating employer in a cafeteria plan within the meaning of Section 125
of the Code maintained for the benefit of the Transferred US Employees and
their dependents that provides those benefits set forth on Schedule 11.1(a)(ii).
The Code Section 125 plan of the Sellers and their Affiliates shall retain
all liabilities with respect to reimbursements to Transferred US Employees for
calendar year 2007.


 


11.10                     Savings
Plans.


 


(a)                          US Plans. Effective as
of the Closing Date, the participation of Current Employees in the Andrew
Profit Sharing Trust (the “Andrew 401(k) Plan”) with respect to future
contributions from and after the Closing Date shall cease and such employees
shall have the distribution, rollover and other rights afforded under the terms
of the Andrew 401(k) Plan to terminated employees; provided, however,
that eligible Current US Employees who participate in the Andrew 401(k) Plan
and who were employed by the Sellers on September 30, 2007, shall receive
an allocation of the employer profit sharing contribution, if any, for the plan
year that ends on such date, notwithstanding that the contribution funding date
may be later than the Closing Date. Any such allocation shall be
determined in accordance with the terms of the Andrew 401(k) Plan. The Sellers
shall cause each Current Employee to be fully vested in his or her account
balances under the Andrew 401(k) Plan as of the Closing Date. The Purchaser
shall, or


 


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shall cause an Affiliate of the Purchaser to,
cover the Transferred US Employees, as soon as practicable after the Closing
Date, but in no event later than 30 days thereafter, under an existing or newly
established defined contribution savings plan that satisfies the requirements
of Code Section 401(a), includes a cash or deferred arrangement satisfying
the requirements of Code Section 401(k) and provides the benefit levels
set forth in Schedule 11.1(a)(ii)  (the “Purchaser 401(k)
Plan”). The Purchaser 401(k) Plan shall accept the rollover of a
Transferred US Employee’s Andrew 401(k) Plan accounts, including the balance of
any outstanding loans thereunder; provided, however, that any
such Transferred US Employee with outstanding loans elects to rollover his
Andrew 401(k) Plan accounts within 90 days after the Closing Date. The
obligation of the Purchaser under the preceding sentence is conditioned upon
the accuracy of the representations contained in Section 4.14(d).


 


(b)                         Canadian Plans. Effective
as of the Closing Date, the participation of Current Canadian Employees in
Andrew’s defined contribution registered pension plan (the “Andrew DC Plan”)
and Andrew’s deferred profit sharing plan (the “Andrew DPSP”) with
respect to future contributions from and after the Closing Date shall cease and
such employees shall have the rollover, transfer, distribution (if applicable)
and other rights afforded under the terms of such plans to terminated
employees; provided, however, that eligible Current Canadian
Employees who participate in the Andrew DPSP and who were employed by the
Sellers on September 30, 2007, shall receive an allocation of the employer
profit sharing contribution, if any, for the plan year that ends on such date,
notwithstanding that the contribution funding date may be later than the
Closing Date. Any such allocation shall be determined in accordance with the
terms of the Andrew DPSP. Furthermore, eligible Current Canadian Employees who
participate in the Andrew DC Plan and who were employed by Sellers on the
Closing Date, shall receive service recognition and pension contributions
respecting service to the Closing Date, notwithstanding that the contribution
funding date may be later than the Closing Date. Any such service
recognition and pension contributions respecting service shall be determined in
accordance with the terms of the Andrew DC Plan. The Sellers shall cause each
Current Canadian Employee to be fully vested in his or her account balances
under the Andrew DC Plan and the Andrew DPSP as of the Closing Date. The
Purchaser shall, or shall cause an Affiliate of the Purchaser to, cover the
Transferred Canadian Employees, as of the Closing Date, under existing or newly
established defined contribution registered pension and deferred profit sharing
plans that satisfy the respective applicable requirements of Law for such plans
(collectively, the “Purchaser Canadian Plans”). The Purchaser Canadian
Plans shall accept rollovers or transfers of the Transferred Canadian Employees’
accounts from the Andrew DC Plan and the Andrew DPSP.


 


11.11                     Workers
Compensation. The Purchaser shall be responsible for all liabilities or
obligations arising under workers’ compensation arrangements (or workplace
safety and insurance arrangements) with respect to Transferred US Employees and
Transferred Canadian Employees to the extent such liabilities or obligations
relate to claims arising solely from accidents or illnesses occurring during
the period from the Closing Date and thereafter. The Sellers and their
Affiliates shall be solely responsible for all liabilities and obligations
arising under workers’ compensation arrangements (or workplace safety and
insurance arrangements)


 


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with respect to Transferred US Employees,
Transferred Canadian Employees and Former Employees to the extent such
liabilities or obligations relate to accidents or illnesses occurring during
the period prior to and including the Closing Date, including, without
limitation, any liability for any retroactive workers’ compensation premiums
(or workplace safety and insurance premiums) attributable to such period.


 


11.12                     WARN Act.
The Purchaser agrees that on and after the Closing it shall be responsible for
any notification required under the WARN Act (and any similar state Law) with
respect to the Transferred US Employees; provided, however, that
Purchaser agrees not to take any employment action within sixty (60) days after
the Closing that would constitute a “plant closing” or “mass layoff” as these
terms are defined in the WARN Act with respect to the Transferred US Employees.
The Sellers agree that prior to and up through the Closing, they will take no
employment action that would constitute a “plant closing” or “mass layoff” as
these terms are defined in the WARN Act with respect to the Employees without notifying
the Purchaser in advance and without complying with the notice requirements and
all other provisions of the WARN Act (and any similar state Law). The Sellers
will also notify the Purchaser, prior to the Closing, of all layoffs and other
involuntary terminations of Employees that occur within sixty (60) days of the
Closing.


 


11.13                     Severance. Subject to the terms of any individual agreements with Transferred US
Employees, Transferred Canadian Employees and Transferred Other Employees, the
Purchaser shall provide notice, or pay in lieu of notice, and pay severance to
any Transferred US Employee, Transferred Canadian Employee or Transferred Other
Employee who is terminated by the Purchaser within (i) six months after
the Closing Date, in the case of the Transferred US Employees, and (ii) one
year after the Closing Date, in the case of the Transferred Canadian Employees
and the Transferred Other Employees, at a level (with respect to both (i) and
(ii)) at least equal to the notice and severance pay that would have been
provided by the applicable Seller, or any of its respective Affiliates, under
applicable Law and the applicable Seller’s or such Affiliate’s severance and
termination policies in effect immediately prior to the Closing Date.


 


11.14                     Skyware Employees.
The parties acknowledge that the employment by Skyware of the Skyware Employees
(e.g., the German Skyware Employees and the UK Skyware Employees) shall not be
interrupted by the transactions contemplated by this Agreement and shall
continue unchanged by operation of Law after the Closing. From and after the
Closing, the Sellers shall have no liability with respect to any current or
former Skyware Employees or with respect to any Skyware Benefit Plans.


 


(a)                          German Skyware Employees.
The terms and conditions of employment and other benefits enjoyed by the German
Skyware Employees in the period of 12 months (or such longer period as may be
required by the German Civil Code or other applicable Law) from and after the
Closing will be no less favorable than those enjoyed by them immediately prior
to the Closing. For the avoidance of doubt, this does not mean that German
Skyware Employees must not be terminated in case of, for example, misbehavior,
redundancy or person-related grounds, or that Skyware is prevented from
restructuring measures.


 


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(b)                         UK Skyware Employees. The
terms and conditions of employment and other benefits (including, without
limitation, severance and other termination/redundancy benefits) enjoyed by the
UK Skyware Employees in the period of 12 months from and after the Closing will
be no less favorable than those enjoyed by them immediately prior to the
Closing.


 


11.15                     Transferred
UK Employees.


 


(a)                          Application of the TUPE
Regulations. Schedule 11.15(a) sets forth a list of the
Current UK Employees who shall transfer to the employ of the Purchaser pursuant
to this Section 11.15 (the “Transferred UK Employees”). The
Sellers and the Purchaser acknowledge and agree that the TUPE Regulations will
apply to the sale and purchase of the Business under this Agreement and to the
Transferred UK Employees;


 


(b)                         Apportionment.


 


(i)                                     The Sellers will
be responsible for all wages, salaries, emoluments and other amounts due or
accruing to, or arising in relation to each of the Transferred UK Employees,
and in respect of each of the Transferred UK Employees will comply with all UK
income tax deduction and national insurance legislation, in all cases up to and
including the day before the Closing Date; and


 


(ii)                                  The Purchaser will be
responsible for all wages, salaries, emoluments and other amounts due to, or
arising in relation to each of the Transferred UK Employees, and in respect of
each of the Transferred UK Employees will comply with all UK income tax deduction
and national insurance legislation, in all cases on and after the Closing Date.


 


(c)                          Seller’s Indemnity. The
Sellers will indemnify the Purchaser against any losses, claims, demands,
actions, proceedings, damages and other payments, costs, expenses and other
liabilities of any kind from time to time made, suffered or incurred by it as a
direct or indirect result of any act or omission of the Sellers prior to
Closing arising out of or relating to the employment of any of the Transferred
UK Employees including any failure of the Sellers to comply with their
obligations under Regulation 13 of the TUPE Regulations where the Purchaser has
complied with its obligation under Regulation 13(4) of the TUPE
Regulations.


 


(d)                         Purchaser’s Indemnity. The
Purchaser will indemnify and keep indemnified the Sellers immediately on demand
against any losses, claims, demands, actions, proceedings, damages and other
payments, costs, expenses and other liabilities of any kind from time to time
made, suffered or incurred by it as a direct or indirect result of:


 


(i)                                     any act or
omission of the Purchaser after Closing relating to the employment or
termination of employment of any of the Transferred UK Employees;


 


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(ii)                                  any substantial
change to the working conditions of any of the Transferred UK Employees to
their material detriment which is made, proposed or anticipated to take effect
after Closing;


 


(iii)                               any right of any
Transferred UK Employee to terminate his contract of employment without notice
in acceptance of any actual, proposed or anticipated repudiatory breach of his
contract by the Purchaser;


 


(iv)                              any breach by the
Purchaser of Regulation 13(4) of the TUPE Regulations;


 


(v)                                 any claim in respect of a failure by the
Purchaser to provide retirement or death-in-service benefits for or in respect
of any Transferred UK Employee in accordance with the minimum requirements of
the TUPE Regulations, the Pensions Act 2004 and the Transfer of Employment
(Pension Protection) Regulations 2005; and


 


(vi)                              any breach by the
Purchaser of Section 11.15(b)(ii).


 


(e)                          Transferred UK Employees
not Covered by the TUPE Regulations. If any contract of employment
(including any rights, powers, duties and liabilities under or in connection
with that contract) of any Transferred UK Employee is found or alleged to
continue with the Sellers after Closing, the Purchaser agrees that:


 


(i)                                     in consultation
with the Sellers, it will within 14 days of being requested by the Sellers make
to that person an offer in writing to employ him or her under a new contract of
employment to take effect upon the termination referred to below; and


 


(ii)                                  such offer of
employment will be:


 


(A)                              on terms and conditions
which, when taken as a whole, are no less favorable than the terms and
conditions of employment of that person immediately before Closing (save as to
the identity of the employer and any terms relating to an occupational pension
scheme); and


 


(B)                                fully compliant with
the undertakings given by the Purchaser in Section 11.15(h).


 


Upon that offer being made by the Purchaser, or at any time after the
expiration of 14 days from a request by the Sellers for the Purchaser to make
that offer, the Sellers will terminate the employment of the Transferred UK
Employee concerned and the Purchaser will indemnify and keep indemnified the
Sellers immediately on demand against any losses, claims, demands, actions,
proceedings, damages and other payments, costs, expenses and other liabilities
of any kind from time to time made, suffered or incurred by it as a direct or
indirect result of the employment of that Transferred UK Employee from the
Closing Date until such termination and the termination of such employment.


 


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(f)                            Persons Other than
Transferred UK Employees to Whom the TUPE Regulations Apply. If any
contract of employment (including any rights, powers, duties and liabilities
under or in connection with any such contract) of any person who is not a
Transferred UK Employee is found or alleged to have effect pursuant to the TUPE
Regulations after Closing as if it was a contract of employment originally made
with the Purchaser, the parties agree that:


 


(i)                                     the Sellers may,
within 14 days of discovering such a finding or allegation make to that person
an offer in writing to employ him or her under a new contract of employment to
take effect on the termination referred to below; and


 


(ii)                                  such offer of
employment will be on terms and conditions which, when taken as a whole, are no
less favorable than the terms and conditions of employment of that person
immediately before Closing.


 


Upon that offer being made, the Purchaser will terminate the employment
of the person concerned, and the Sellers will indemnify and keep indemnified the
Purchaser immediately on demand against any losses, claims, demands, actions,
proceedings, damages and other payments, costs, expenses and other liabilities
of any kind from time to time made, suffered or incurred by it as a direct or
indirect result of the employment of such person from the Closing Date until
such termination and the termination of such employment.


 


(g)                         Employee Liability
Information. The parties confirm that it is their intention that the
provision of Employee Liability Information is regulated by the parties
themselves in accordance with the commercial arrangements set out in this
Agreement. In particular, but without limitation:


 


(i)                                     the Purchaser
specifically undertakes that it will not make any application pursuant to
Regulation 12 of the TUPE Regulations in respect of any failure or alleged
failure by the Sellers to provide Employee Liability Information to the
Purchaser;


 


(ii)                                  the Purchaser
confirms that it would not be just or equitable for any court or tribunal to
make any award pursuant to Regulation 12(3) of the TUPE Regulations given
the terms of this Agreement. If, contrary to the intentions of the parties, any
award is made pursuant to Regulation 12(3) of the TUPE Regulations, the
compensation paid will be offset against any other sums payable under this
Agreement to the Purchaser to the extent those other sums arise out of the same
act or omission by the Sellers and will only be payable by the Sellers to the
Purchaser pursuant to this Agreement to the extent that the Purchaser has
complied with any terms or conditions laid down in this Agreement for a claim
against the Sellers for breach of the warranties in Section 4.15 as
to the Transferred UK Employees; and


 


(iii)                               the Purchaser will give
full credit for any sums paid by the Sellers pursuant to any award under
Regulation 12(3) of the TUPE Regulations in respect of any other claims
(whether employment related or otherwise) which (after complying with any


 


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terms or conditions set forth in this
Agreement) the Purchaser has against the Seller arising out of this Agreement.


 


(h)                         Purchaser’s Undertakings.
The Purchaser undertakes to the Sellers:


 


(i)                                     that the terms and
conditions of employment enjoyed by the Transferred UK Employees in the period
of 12 months from Closing will be no less favorable than those enjoyed by them
prior to Closing (but without prejudice to any improvements to salaries, wages
or conditions agreed in accordance with the Purchaser’s normal review
procedures); and


 


(ii)                                  in the event of the
Purchaser effecting enforced redundancy of any of the Transferred UK Employees
or terminating any of the Transferred UK Employees’ contracts of employment
without good cause in the period of 12 months from Closing, to make available
or procure that there is available to each Transferred UK Employee a package no
less favorable than that which would have been made available to him had he
still been an employee of the applicable Seller at the date of that redundancy
or termination on the basis of the applicable Seller’s policy.


 


(i)                             Access to Transferred
UK Employees. The Sellers and the Purchaser will consult and keep the other
fully informed regarding any information they propose to give to the
Transferred UK Employees and their representatives or any consultation they
have with the Transferred UK Employees and their representatives regarding this
Agreement prior to Closing, and each will offer the other the opportunity to
attend and participate in any meetings prior to Closing at which information is
given to, or there is consultation with Transferred UK Employees and their
representatives.


 


(j)                             Letter to Transferred
UK Employees. Immediately following the Closing Date, the Sellers and the
Purchaser will send to each of the Transferred UK Employees a joint letter in
an agreed form.


 


11.16                     Mutual
Cooperation. The parties hereto shall cooperate with each other and provide
each other with such information as is reasonably necessary to effect the
provisions of this Article XI (including, without limitation, such
cooperation as the parties may reasonably require to comply with the TUPE
Regulations).


 


11.17                     No Third
Party Beneficiaries. No provision in this Article XI shall (a) create
any third-party beneficiary or other rights in any employee or former employee
(including any beneficiary or dependent thereof) of the Sellers, Skyware or any
other Person other than the parties hereto and their respective successors and
permitted assigns, (b) constitute or create an employment agreement or (c) constitute
or be deemed to constitute an amendment to any employee benefit plan sponsored
or maintained by the Purchaser or its affiliates.


 


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ARTICLE XII


 


INDEMNIFICATION


 


12.1                           Survival.
The representations and warranties of the parties hereto contained herein and
in the Related Agreements shall survive the Closing for a period of eighteen
(18) months after the Closing, except that (a) Benefit and Environmental
Warranties shall survive the Closing for a period of three (3) years after
the Closing, (b) Tax Warranties shall survive the Closing until 45 days
after the expiration of the applicable statute of limitations as extended (or
if such day is not a Business Day, the next Business Day), (c) Title and
Authorization Warranties shall survive the Closing forever and (d) Real
Property Title Warranties shall not survive the Closing. None of the Purchaser,
the Sellers or any other party hereto shall have any liability with respect to
claims first asserted in connection with any representation or warranty after
the survival period specified therefor in this Section 12.1.


 


12.2                           Indemnification
by the Sellers. Subject to Section 12.4, the Sellers agree to
jointly and severally indemnify the Purchaser, its Affiliates, and their
respective directors, officers, shareholders, agents and employees, and their
respective heirs, successors and assigns (each, a “Purchaser Indemnified
Party”) against, and agrees to hold the Purchaser and its Affiliates
harmless from, any and all Losses incurred or suffered by the Purchaser or its
Affiliates to the extent arising out of any of the following:


 


(a)                          any breach of or any
inaccuracy in any representation or warranty made by any Seller in this
Agreement or any breach of or any inaccuracy in any representation or warranty
made by any Seller in any Related Agreement or any document delivered by such
Person at the Closing; provided, that no Seller shall have liability
under this Section 12.2(a) for any breach of or inaccuracy in
any representation or warranty unless (i) in the case of all
representations and warranties except for Benefit and Environmental Warranties,
Tax Warranties and Title and Authorization Warranties, a written notice of the
Purchaser Indemnified Party’s claim is given to the Sellers no later than the
close of business on the date that is eighteen (18) months after the Closing
Date, (ii) in the case of Benefit and Environmental Warranties, a written
notice of the Purchaser Indemnified Party’s claim is given to the Sellers no
later than the close of business on the three (3) year anniversary of the
Closing Date, and (iii) in the case of Tax Warranties, a written notice of
the Purchaser Indemnified Party’s claim is given to the Sellers no later than
the close of business on the 45th day after the expiration of the
applicable statute of limitations as extended (or if such day is not a Business
Day, the next Business Day), in each case with each such notice specifying (in
reasonably sufficient detail) the matter giving rise to the claim, the nature
of the claim and, so far as practicable, the amount claimed; provided, further,
that no Seller shall have any liability under this Section 12.2(a) for
any breach of or inaccuracy in a Real Property Title Warranty;


 


(b)                         any breach of or failure by
any Seller to perform any of its covenants or obligations set out in this
Agreement or any breach of or failure by any Seller to perform its
covenants or obligations set out in any Related Agreement or any document
delivered by such Seller at the Closing; provided, that the Sellers
shall have no liability


 


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under this Section 12.2(b) for
any such breach or failure occurring on or prior to the Closing Date unless a
written notice of the Purchaser Indemnified Party’s claim is sent to the
Sellers no later than the close of business on the date that is eighteen (18)
months after the Closing Date;


 


(c)                          any Retained Obligation;


 


(d)                         any Seller’s failure to comply
with any Bulk Sales Laws;


 


(e)                          all Taxes (or the nonpayment
thereof) of Skyware for any Pre-Closing Tax Period and any Pre-Closing Straddle
Period, and (ii) any and all Taxes of any Person (other than Skyware)
imposed on Skyware as a transferee or successor, by contract or pursuant to any
Law, which Taxes relate to an event or transaction occurring on or before the
Closing Date; or


 


(f)                            obligations, limited to
reasonable, documented, out of pocket costs and expenses, incurred by Purchaser
after the Closing Date under the WildBlue Agreement, solely to the extent that
such obligations were necessary for the GES Development (as such term is
defined in the WildBlue Agreement) under such agreement and solely to the
extent incurred prior and in order to obtain the GES Final Acceptance (as such
term is defined in the WildBlue Agreement); provided, that (i) Purchaser
shall cooperate in good faith with Sellers in order to minimize such out of
pocket costs and expenses, and (ii) if such out of pocket costs and
expenses exceed $50,000 in the aggregate, the Sellers shall only be obligated
to indemnify Purchaser for such costs and expenses to the extent that Purchaser
obtains Andrew’s prior written consent, not to be unreasonably withheld, prior
to incurring such costs and expenses.


 


12.3                           Indemnification
by the Purchaser. The Purchaser agrees to indemnify the Sellers, their
Affiliates, and their respective directors, officers, shareholders, agents and
employees, and their respective heirs, successors and assigns (each, a “Seller
Indemnified Party”) against, and agrees to hold the Sellers and their
Affiliates harmless from, any and all Losses incurred or suffered by the
Sellers or their Affiliates to the extent arising out of any of the following:


 


(a)                          any breach of or any
inaccuracy in any representation or warranty made by the Purchaser in this
Agreement or any Related Agreement or any document delivered by the Purchaser
at the Closing; provided, that the Purchaser shall have no liability
under this Section 12.3(a) for any breach of or inaccuracy in
any representation or warranty unless, in the case of all representations and
warranties except for Title and Authorization Warranties, a written notice of
the Seller Indemnified Party’s claim is given to the Purchaser not later than
the close of business on the date that is eighteen (18) months after the
Closing Date, in each case with each such notice specifying (in reasonably
sufficient detail) the matter giving rise to the claim, the nature of the claim
and, so far as practicable, the amount claimed;


 


(b)                         any breach of or failure by
the Purchaser to perform any covenant or obligation of the Purchaser set
out in this Agreement or any Related Agreement or any document delivered by the
Purchaser at the Closing; provided, that the Purchaser shall


 


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have no liability under this Section 12.3(b) for
any such breach or failure occurring on or prior to the Closing Date unless a
written notice of the Seller Indemnified Party’s claim is given to the
Purchaser not later than the close of business on the date that is eighteen
(18) months after the Closing Date;


 


(c)                          any Assumed Obligation;


 


(d)                         (A) any suit or claim of
violation brought against any Seller or its Affiliates under the WARN Act, or
any comparable state Law for any actions taken by Purchaser after the Closing
Date with respect to any facility, plant, operating unit, Transferred Employee
or (B) relating to non-compliance by Purchaser with the WARN Act, including
any failure of Purchaser to give the notice required by the WARN Act, or other
similar statutes or regulations with respect to any plant closing or mass
layoff (or similar triggering event) caused by Purchaser after the Closing
Date; or


 


(e)                          any obligation or liability
arising under any Andrew Guarantee not released as of the Closing.


 


12.4                           Limitations
on Liability of the Sellers. Notwithstanding any other provision of this
Agreement:


 


(a)                          The Purchaser Indemnified
Parties shall have the right to payment by the Sellers under Section 12.2(a) only
if, and only to the extent that, the Purchaser Indemnified Parties shall have
incurred, (i) as to any particular claim under Section 12.2(a),
an indemnifiable Loss in excess of $25,000;
and (ii) indemnifiable Losses in excess of $300,000 (in determining
whether this aggregate threshold has been satisfied, only Losses exceeding the
per claim threshold set forth in the foregoing clause (i) shall be
included); provided, that no such limitation shall apply to any claim
for Losses related to a breach of a Title and Authorization Warranty, a Tax
Warranty, or a warranty set forth in Section 4.20(b).


 


(b)                         The Sellers shall have no
liability under or otherwise in connection with this Agreement or the Related
Agreements or the transactions contemplated hereby or thereby as to all
representations and warranties, other than Title and Authorization Warranties
and Tax Warranties, in excess of $2,500,000 (the “Cap”) in the
aggregate; provided, however, that if Sellers are entitled to any
Earnout Payment pursuant to Section 3.4(c), then the amount of the
Cap shall be increased by an amount equal to 10% of such Earnout Payment. In
the event that any Purchaser Indemnified Party had previously incurred a final
Loss indemnifiable as determined in accordance with this Article XII
and that was not paid by Sellers as a result of the original Cap, then
Purchaser shall be entitled to set-off the amount of such Loss in an amount not
to exceed 10% of such Earnout Payment.


 


(c)                          IN
NO EVENT SHALL THE SELLERS OR ANY OF THEIR AFFILIATES HAVE ANY LIABILITY UNDER
THIS AGREEMENT, ANY RELATED AGREEMENT OR OTHERWISE IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY FOR SPECIAL,


 


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SPECULATIVE, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OR
FOR LOST PROFITS, EXCEPT (I) TO THE EXTENT THAT SUCH CONSEQUENTIAL OR
INCIDENTAL DAMAGES ARE REASONABLY FORESEEABLE (BUT IN ANY EVENT SHALL NOT
INCLUDE DAMAGES FOR LOST PROFITS OR BASED ON A MULTIPLE OF EARNINGS) OR
(II) TO THE EXTENT THAT ANY SUCH DAMAGES ARE PAYABLE BY A PURCHASER
INDEMNIFIED PARTY PURSUANT TO A THIRD PARTY CLAIM.


 


(d)                         EXCEPT FOR FRAUD, INTENTIONAL
MISREPRESENTATION OR WILLFUL MISCONDUCT, THE SOLE AND EXCLUSIVE LIABILITY AND
RESPONSIBILITY OF THE SELLERS AND THEIR AFFILIATES TO THE PURCHASER AND ITS
AFFILIATES UNDER OR IN CONNECTION WITH THE ASSETS, THE BUSINESS, THE
TRANSFERRED SHARES, THIS AGREEMENT, THE RELATED AGREEMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (INCLUDING FOR ANY BREACH OF OR INACCURACY IN
ANY REPRESENTATION OR WARRANTY OR FOR ANY BREACH OF ANY COVENANT OR OBLIGATION
OR FOR ANY OTHER REASON), AND THE SOLE AND EXCLUSIVE REMEDY OF THE PURCHASER
AND ITS AFFILIATES WITH RESPECT TO ANY OF THE FOREGOING, SHALL BE AS SET FORTH
IN THIS ARTICLE XII AND IN SECTION 6.8 AND SECTION 6.11.
To the extent that the Purchaser or any of its Affiliates has any such Losses
for which it may assert any other right to indemnification, contribution
or recovery from the Sellers or any of their Affiliates, the Purchaser hereby
waives, releases and agrees not to assert such right, and the Purchaser agrees
to cause each of its Affiliates to waive, release and agree not to assert such
right.


 


(e)                          Neither the Sellers nor any
of their Affiliates shall have any liability under or otherwise in connection
with this Agreement or the Related Agreements or the transactions contemplated
hereby or thereby for any Loss (i) to the extent arising from or relating
to any matter disclosed on the Schedules to this Agreement (to the extent its
relevance is reasonably apparent on its face), and (ii) to the extent
arising from a change in Law that becomes effective after the Closing Date.


 


12.5                           Claims.
As promptly as is reasonably practicable after becoming aware of a claim for
indemnification under this Agreement not involving a claim, or the commencement
of any suit, action or proceeding, of the type described in Section 12.6,
but in any event no later than thirty (30) Business Days after first becoming
aware of such claim, the Indemnified Person shall give notice to the
Indemnifying Person of such claim, which notice shall specify the facts alleged
to constitute the basis for such claim, the representations, warranties,
covenants and obligations alleged to have been breached and the amount that the
Indemnified Person seeks hereunder from the Indemnifying Person, together with
such information as may be necessary for the Indemnifying Person to
determine that the limitations in Section 12.4 have been satisfied
or do not apply; provided, that the failure of the Indemnified Person to
give such notice shall not relieve the Indemnifying Person of its obligations
under this Article XII except, with respect to any third party
claim, to the extent (if any) that the Indemnifying Person shall have been
materially prejudiced thereby.


 


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12.6                           Notice
of Third Party Claims; Assumption of Defense. The Indemnified Person shall
give notice as promptly as is reasonably practicable, but in any event no later
than ten (10) Business Days after receiving notice thereof, to the
Indemnifying Person of the assertion of any claim, or the commencement of any
suit, action or proceeding, by any Person not a party hereto in respect of
which indemnity may be sought under this Agreement (which notice shall
specify in reasonable detail the nature and amount of such claim together with
such information as may be necessary for the Indemnifying Person to
determine that the limitations in Section 12.4 have been satisfied
or do not apply); provided, that the failure of the Indemnified Person
to give such notice shall not relieve the Indemnifying Person of its
obligations under this Article XII except to the extent (if any)
that the Indemnifying Person shall have been prejudiced thereby. The
Indemnifying Person may, at its own expense, (a) participate in the
defense of any such claim, suit, action or proceeding and (b) upon notice
to the Indemnified Person, at any time during the course of any such claim,
suit, action or proceeding, assume the defense thereof with counsel of its own
choice and in the event of such assumption, shall have the exclusive right,
subject to clause (a) in the proviso in Section 12.7, to
settle or compromise such claim, suit, action or proceeding. If the
Indemnifying Person assumes such defense, the Indemnified Person shall have the
right (but not the duty) to participate in the defense thereof and to employ
counsel, at its own expense, separate from the counsel employed by the
Indemnifying Person. Whether or not the Indemnifying Person chooses to defend
or prosecute any such claim, suit, action or proceeding, all of the parties
hereto shall cooperate in the defense or prosecution thereof.


 


12.7                           Settlement
or Compromise. Any settlement or compromise made or caused to be made by
the Indemnified Person (unless the Indemnifying Person has the exclusive right
to settle or compromise under clause (b) of Section 12.6) or
the Indemnifying Person, as the case may be, of any such claim, suit,
action or proceeding of the kind referred to in Section 12.6 shall
also be binding upon the Indemnifying Person or the Indemnified Person, as the
case may be, in the same manner as if a final judgment or decree had been
entered by a court of competent jurisdiction in the amount of such settlement
or compromise; provided, that (a) no obligation, restriction or
Loss shall be imposed on the Indemnified Person as a result of such settlement
or compromise without its prior written consent, which consent shall not be
unreasonably withheld, and (b) the Indemnified Person will not compromise
or settle any claim, suit, action or proceeding without the prior written
consent of the Indemnifying Person, which consent shall not be unreasonably
withheld.


 


12.8                           Time
Limits. Any right to indemnification or other recovery under this Article XII
shall only apply to Losses with respect to which the Indemnified Person shall
have notified the Indemnifying Person in writing within the applicable time
period set forth in Section 12.2 or 12.3, as the case may be.


 


12.9                           Net
Losses and Subrogation.


 


(a)                          Notwithstanding anything
contained herein to the contrary, the amount of any Losses incurred or suffered
by any Indemnified Person shall be reduced by (i) any insurance proceeds
received by the Indemnified Person (or any of its Affiliates) with respect to
such Losses, (ii) an amount equal to the actual Net Tax Reduction of the
Indemnified Party for the same taxable year such Loss was incurred by the
Indemnified Person arising from the facts or circumstances giving rise to such
Loss when actually


 


84

















 


realized by the Indemnified Party, and (iii) any
recoveries obtained by the Indemnified Person (or any of its Affiliates) from
any other third party. Each Indemnified Person shall exercise commercially
reasonable efforts to obtain such proceeds, Net Tax Reduction and recoveries. The
term “Net Tax Reduction” shall mean, with respect to a taxable year of
an Indemnified Person and without duplication, the excess, if any, of (i) such
Indemnified Person’s liability for Taxes for such taxable year, calculated by
excluding any Tax items (e.g., deductions, credits) attributable to the Loss,
over (ii) such Indemnified Person’s actual liability for Taxes for such
taxable year, calculated by taking into account any Tax items attributable to
the Loss (to the extent permitted by relevant Tax law and treating such Tax
items as the last items claimed for such taxable year) and any income or gain
recognized by the Indemnified Person attributable to any amounts payable by the
Indemnifying Person under Section 12.2 or Section 12.3
without regard to Section 12.9(a)(ii) (to the extent required
by relevant Tax law). If the actual Net Tax Reduction is subsequently reduced
including, without limitation, as result of an adjustment by a Governmental
Authority, the Indemnifying Person shall pay the amount of such reduction to
the Indemnified Person plus any interest, penalties, additions to tax
attributable to such reduction. If any such proceeds, Net Tax Reduction or
recoveries are received by an Indemnified Person (or any of its Affiliates)
with respect to any Losses after an Indemnifying Person has made a payment to
the Indemnified Person with respect thereto, the Indemnified Person (or such
Affiliate) shall promptly pay to the Indemnifying Person the amount of such
proceeds, Net Tax Reduction or recoveries (up to the amount of the Indemnifying
Person’s payment).


 


(b)                         Upon making any payment to an
Indemnified Person in respect of any Losses, the Indemnifying Person will, to
the extent of such payment, be subrogated to all rights of the Indemnified
Person (and its Affiliates) against any third party in respect of the Losses to
which such payment relates; provided, however, that such
Indemnifying Person shall not take any actions materially adverse to the
Business, or any customer or supplier of the Business. Such Indemnified Person
(and its Affiliates) and Indemnifying Person will execute upon request all instruments
reasonably necessary to evidence or further perfect such subrogation rights.


 


12.10                     Purchase
Price Adjustments. To the extent permitted by Law, any amounts payable
under Section 12.2 or Section 12.3 shall be treated by
the Purchaser and the Sellers as an adjustment to the Purchase Price.


 


ARTICLE XIII


 


MISCELLANEOUS


 


13.1                           Expenses.
Except as contemplated by Section 6.10(b) and Section 6.20,
each party hereto shall bear its own fees and expenses with respect to the
transactions contemplated hereby.


 


13.2                           Amendment.
Except as provided in Section 13.17, this Agreement may be
amended, modified or supplemented only in a writing signed by the Purchaser and
the Sellers.


 


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13.3                           Notices.
Any notice, request, instruction or other document to be given hereunder by a
party hereto shall be in writing and shall be deemed to have been given, (a) when
received if given in person or by courier or a courier service, or (b) on
the date of transmission if sent by facsimile transmission (receipt confirmed)
on a Business Day during the normal business hours of the intended recipient,
and if not so sent on such a day and at such a time, on the following Business
Day:


 


(i)                                     If
to the Purchaser, addressed as follows:


 


ASC
Signal Corporation


c/o Resilience Capital Partners
LLC


25201 Chagrin Boulevard


Suite 360


Cleveland, Ohio 44122


Attention:  Bassem A. Mansour


Facsimile:  (216) 292-4750


 


with a copy to:


 


Jones Day


77 West Wacker Drive


Chicago, Illinois 60601-1692


Attention:  Walter S. Holzer


Facsimile:  (312) 752-8585


 


(ii)                                  If
to the Sellers, addressed as follows:


 


c/o Andrew Corporation


3 Westbrook Corporate Center


Westchester, IL 60154


Attention:  Vice President and General Counsel


Facsimile:  (708) 492-3823


 


with a copy to:


 


Mayer Brown LLP


71 South Wacker Drive


Chicago, Illinois 60606


Attention:  James T. Lidbury


Facsimile:  (312) 701-8492


 


or to such other individual or address as a party hereto may designate
for itself by notice given as herein provided.


 


13.4                           Payments
in Dollars. Except as otherwise provided herein or in a Related Agreement,
all payments pursuant hereto shall be made by wire transfer in Dollars in same
day or immediately available funds without any set-off, deduction or
counterclaim whatsoever.


 


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13.5                           Waivers.
Except as otherwise provided in Article XII, the failure of a party
hereto at any time or times to require performance of any provision hereof or
claim damages with respect thereto shall in no manner affect its right at a
later time to enforce the same. No waiver by a party of any condition or of any
breach of any term, covenant, representation or warranty contained in this
Agreement shall be effective unless in writing, and no waiver in any one or
more instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.


 


13.6                           Assignment.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns; provided,
that, except with the written consent of the other parties, no assignment of
this Agreement or any rights or obligations hereunder, by operation of law or
otherwise, may be made by any party, other than to an Affiliate or lender
of such party (but no such assignment shall relieve the assigning party of its
obligations hereunder). Without diminishing the foregoing, (i) in the
event that any Seller (directly or indirectly) enters into a sale, lease,
pledge or disposal of all or substantially all of its respective assets, or the
sale of all or substantially all of its respective capital stock or other
equity securities, or enters into a merger, consolidation or other acquisition
with any other party, or any transaction similar to the foregoing in format or
purpose, such Seller shall require as a condition to the consummation of such
transaction, the other party’s written agreement to be liable for such Seller’s
obligations hereunder (including such Seller’s joint and several liability
under Article XII herein), and (ii) the Purchaser may designate
any Person that is a wholly-owned subsidiary of the Parent as a designee for
purposes of receiving title to the Assets or any portion of the Assets.


 


13.7                           No
Third Party Beneficiaries. This Agreement is solely for the benefit of the
parties hereto and, to the extent expressly provided herein, their respective
Affiliates, and no provision of this Agreement shall be deemed to confer upon
other third parties any remedy, claim, liability, reimbursement, cause of
action or other right.


 


13.8                           Publicity.
Prior to the Closing Date, no public announcement or other publicity regarding
the existence of this Agreement or any of the Related Agreements or their
contents or the transactions contemplated hereby or thereby shall be made by
the Purchaser, the Sellers or any of their respective Affiliates, officers,
directors, employees, representatives or agents, without the prior written
agreement of the Purchaser and the Sellers, in any case, as to form, content,
timing and manner of distribution or publication. On and after the Closing
Date, each of the Sellers and the Purchaser agree to hold confidential the terms
and provisions of this Agreement and the Related Agreements and the terms of
the transactions contemplated hereby and thereby. Notwithstanding the
foregoing, nothing in this Section 13.8 shall prevent any party or
its Affiliates or any other Person from (a) making any public announcement
or disclosure required by Law or the rules of any stock exchange, (b) disclosing
this Agreement or any of the Related Agreements or their contents or the
transactions contemplated hereby or thereby to (i) current and future
officers, directors, employees, representatives and agents of such party and
its Affiliates, (ii) current and potential lenders to, investors in and
purchasers of such party and its Affiliates (or any portion thereof), and (iii) those
Persons whose approval, agreement or opinion, as the case may be, is
required for consummation of such particular transaction or transactions, (c) making
a public announcement and press release following the Closing that describes
the


 


87

















 


nature of the transaction contemplated herein
in general terms without setting forth the Purchase Price or the manner of its
determination, unless such information has already been publicly disclosed in
accordance with this Section 13.8, and (d) making any
disclosures incident to enforcing its rights hereunder.


 


13.9                           Further
Assurances. Upon the reasonable request of the Purchaser, on and after the
Closing Date, the Sellers shall execute and deliver to the Purchaser such
deeds, assignments and other instruments as may be reasonably requested by
the Purchaser and are required to effectuate completely the transfer and
assignment to the Purchaser of the right, title and interest of the Sellers in
and to the Assets and the Transferred Shares, and to otherwise carry out the
purposes of this Agreement.


 


13.10                     Severability.
If any provision of this Agreement shall be held invalid, illegal or
unenforceable, the validity, legality or enforceability of the other provisions
hereof shall not be affected thereby, and there shall be deemed substituted for
the provision at issue a valid, legal and enforceable provision as similar as
possible to the provision at issue.


 


13.11                     Entire
Understanding. This Agreement, the Related Agreements and the
Confidentiality Agreement set forth the entire agreement and understanding of
the parties hereto with respect to the transactions contemplated hereby and
thereby and supersede any and all prior agreements, arrangements and
understandings among the parties relating to the subject matter hereof.


 


13.12                     Language.
The Sellers and the Purchaser agree that the language used in this Agreement is
the language chosen by the parties to express their mutual intent, and that no rule of
strict construction is to be applied against the Sellers or the Purchaser. Each
of the Sellers and the Purchaser and their respective counsel have reviewed and
negotiated the terms of this Agreement.


 


13.13                     Applicable
Law. This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Illinois without giving
effect to the principles of conflicts of law thereof.


 


13.14                     Remittances.
All remittances, payments, mail and other communications relating to the Assets
or the Assumed Obligations received by the Sellers at any time after the
Closing Date shall be promptly turned over to the Purchaser by the Sellers. All
remittances, payments, mail and other communications relating to the Excluded
Assets or the Retained Obligations received by the Purchaser at any time after
the Closing Date shall be promptly turned over to the Sellers by the Purchaser.


 


13.15                     Bulk Sales.
The Purchaser hereby waives compliance by the Sellers with the provisions of
the Laws of any jurisdiction relating to a bulk sale or transfer of assets that
may be applicable to the transfer of the Assets (collectively, the “Bulk
Sales Laws”).


 


13.16                     Jurisdiction
of Disputes; Waiver of Jury Trial. Each party to this agreement hereby (a) agrees
that any litigation, proceeding or other legal action in connection with or
relating to this Agreement, any Related Agreement or any matters contemplated
hereby or thereby, shall be brought by any party solely in a court of competent
jurisdiction located within


 


88

















 


the City of Chicago, in the State of
Illinois, whether a state or federal court; (b) agrees that in connection
with any such litigation, proceeding or action, it will consent and submit to
personal jurisdiction in any such court described in clause (a) of this Section 13.16
and to service of process upon it in accordance with the rules and
statutes governing service of process; (c) agrees to waive to the full
extent permitted by Law any objection that it may now or hereafter have to
the venue of any such litigation, proceeding or action in any such court or
that any such litigation, proceeding or action was brought in an inconvenient
forum; (d) designates, appoints and directs CT Corporation System as its
authorized agent to receive on its behalf service of any and all process and
documents in any such litigation, proceeding or action in the City of Chicago,
in the State of Illinois; (e) agrees to notify the other parties to this
Agreement immediately if such agent shall refuse to act, or be prevented from
acting, as agent and, in such event, promptly to designate another agent in the
City of Chicago, in the State of Illinois to serve in place of such agent and
deliver to the other parties written evidence of such substitute agent’s
acceptance of such designation; (f) agrees as an alternative method of
service to service of process in any such litigation, proceeding or action by
mailing of copies thereof to it at its address set forth in Section 13.3;
(g) agrees that any service made as provided herein shall be effective and
binding service in every respect; and (h) agrees that nothing herein shall
affect the rights of any party to effect service of process in any other manner
permitted by Law. EACH PARTY HERETO IRREVOCABLY AND ABSOLUTELY WAIVES THE RIGHT
TO A TRIAL BY JURY IN ANY DISPUTE IN CONNECTION WITH, ARISING UNDER OR RELATING
TO THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY OR
THEREBY, AND AGREES TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO
EFFECT SUCH WAIVER.


 


13.17                     Schedules.
Any information disclosed pursuant to any Schedule hereto shall be deemed
to be disclosed to the Purchaser for each purpose of this Agreement for which
the relevance of such disclosure is reasonably apparent. Neither the
specification of any Dollar amount or any item or matter in any provision of
this Agreement or any Related Agreement nor the inclusion of any specific item
or matter in any Schedule hereto or thereto is intended to imply that such
amount, or higher or lower amounts, or the item or matter so specified or
included, or other items or matters, are or are not material, and no party
shall use the fact of the specification of any such amount or the specification
or inclusion of any such item or matter in any dispute or controversy between
the parties as to whether any item or matter is or is not material for purposes
of this Agreement or any Related Agreement. Neither the specification of any
item or matter in any provision of this Agreement or any Related Agreement nor
the inclusion of any specific item or matter in any Schedule hereto or
thereto is intended to imply that such item or matter, or other items or
matters, are or are not in the ordinary course of business, and no party shall
use the fact of the specification or the inclusion of any such item or matter
in any dispute or controversy between the parties as to whether any item or
matter is or is not in the ordinary course of business for purposes of this
Agreement or any Related Agreement. The Sellers may, from time to time prior to
or at the Closing, by notice in accordance with the terms of this Agreement,
supplement or amend any Schedule hereto, including one or more supplements
or amendments to correct any matter which would constitute a breach of any
representation, warranty, covenant or obligation contained herein. No such
supplemental or amended Schedule shall be deemed to cure any breach for
purposes of Section 7.1. If, however, the Closing occurs, any such
supplement and amendment will be effective to cure and correct for all other
purposes any inaccuracy in or breach of any representation, warranty, covenant
or obligation which would


 


89

















 


have existed if the Sellers had not made such
supplement or amendment, and all references to any Schedule hereto which
is supplemented or amended as provided in this Section 13.17 shall
for all purposes after the Closing be deemed to be a reference to such Schedule as
so supplemented or amended.


 


13.18                     Disclaimer
of Warranties. The Sellers make no representations or warranties with
respect to any projections, forecasts or forward-looking statements made
available to the Purchaser. There is no assurance that any projected or
forecasted results will be achieved. EXCEPT TO THE EXTENT OF THE EXPRESS
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT (INCLUDING THE
SCHEDULES) AND ANY RELATED AGREEMENT, THE SELLERS (A) DISCLAIM ALL OTHER
WARRANTIES, REPRESENTATIONS AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, (B) MAKE
NO REPRESENTATIONS OR WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE AND NO IMPLIED REPRESENTATIONS OR WARRANTIES, AND DISCLAIMS
ALL SUCH REPRESENTATIONS AND WARRANTIES, AND (C) DISCLAIM ANY WARRANTY OF
TITLE OR NON-INFRINGEMENT AND ANY WARRANTY ARISING BY INDUSTRY CUSTOM OR COURSE
OF DEALING. THE PURCHASER ACKNOWLEDGES AND AGREES THAT IT IS NOT RELYING ON ANY
REPRESENTATIONS OR WARRANTIES OF THE SELLERS, EXCEPT FOR THE REPRESENTATIONS
AND WARRANTIES CONTAINED IN THIS AGREEMENT (INCLUDING THE SCHEDULES) OR ANY
RELATED AGREEMENT. The Purchaser acknowledges and agrees that no
representations or warranties contained herein shall be applicable with respect
to the purchase by Purchaser of any inventory pursuant to the Transition
Services Agreement or pursuant to any other commercial arrangement that may be
entered into between any Seller and Purchaser, and the representations and
warranties contained herein shall apply solely with respect to the purchase of
the Inventory in accordance with the terms hereof. The Purchaser acknowledges
and agrees that the Sellers, their Affiliates and their respective
representatives have made no representation or warranty, express or implied, as
to the accuracy or completeness of any memoranda, charts, summaries, schedules
or other information heretofore made available by the Sellers, their Affiliates
or their respective representatives to the Purchaser, any of its Affiliates or
their representatives (including the Confidential Information Memorandum dated March 7,
2007) or any information that is not included in this
Agreement, any Related Agreement or the Schedules hereto, and the Sellers,
their Affiliates and their respective representatives will not have or be
subject to any liability to the Purchaser, any of its Affiliates or their representatives
resulting from the distribution of any such information to, or the use of any
such information by, the Purchaser, any of its Affiliates or any of their
agents, consultants, accountants, counsel or other representatives.


 


13.19                     Counterparts.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


 


* 
*  *


 


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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.


 


 


	
   

  	
  ASC
  SIGNAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bassem A. Mansour

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Bassem A. Mansour

  
	
   

  	
   

  	
  Title:

  	
  President

  
					



 


 


	
   

  	
  ANDREW
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John DeSana

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John DeSana

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  
					



 


 


	
   

  	
  ANDREW
  CANADA INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jude Panetta

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jude Panetta

  
	
   

  	
   

  	
  Title:

  	
  President

  
					



 


 


	
   

  	
  ANDREW
  LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Olson

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mark Olson

  
	
   

  	
   

  	
  Title:

  	
  Chairman

  
					



 

















 


	
   

  	
  ANDREW
  HOLDINGS (GERMANY) GMBH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ F. Willis Caruso, Jr.

  	
   

  
	
   

  	
   

  	
  Name:

  	
  F. Willis Caruso, Jr.

  
	
   

  	
   

  	
  Title:

  	
  Managing Director