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

  






 


 


iv

















 


 




	
   

  	
   

  	
  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 therefore
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.


 


 


56

















 


 


(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 


 


 


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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.


 


 


61

















 


 


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 


 


 


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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


 


 


70
















 


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 


 


72

















 


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 


 


73

















 


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.


 


 


85

















 


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.


 


 


86

















 


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.


 


*  *  *


 


 


90

















 


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

  
	
   

  	
   

  	
   

  



 






 












 


AMENDMENT
NO. 1 TO PURCHASE AND SALE AGREEMENT


 


This AMENDMENT NO. 1 TO PURCHASE AND SALE
AGREEMENT (this “Amendment”) dated as of December 20, 2007, is by and
among ASC Signal Corporation, a corporation incorporated under the laws of
Delaware (the “Purchaser”), Andrew Corporation, a Delaware corporation (“Andrew”),
and Andrew Canada Inc., Andrew Limited, Andrew Holdings (Germany) GmbH, (each a
“Seller”, and collectively with Andrew, the “Sellers”).  Purchaser and Sellers may be referred to
individually as a “Party” and collectively as the “Parties.”


 


WHEREAS, the Parties
have previously entered into that certain Purchase and Sale Agreement (the “Original Agreement”),
made as of November 5, 2007; and


 


WHEREAS, the Parties
desire to amend the Original Agreement, as permitted by Section 13.2
thereof;


 


NOW,
THEREFORE, in consideration of the premises and the mutual
agreements and covenants set forth herein, the Parties agree as follows:


 


1.                                       Amendment to Section 13.6.  The Original Agreement is hereby amended to
add the following sentence to the end of Section 13.6:


 


Notwithstanding
the foregoing restrictions and conditions on assignment contained in this Section 13.6,
(i) no written consent of Purchaser shall be required in connection with
that certain Agreement and Plan of Merger, dated as of June 26, 2007 (the “CommScope
Merger Agreement”), by and among CommScope, Inc., DJRoss, Inc.
and Andrew Corporation, or any of the transactions contemplated by the
CommScope Merger Agreement, including the merger of the Merger Sub (as such
term is defined in the CommScope Merger Agreement) with and into Andrew,
pursuant to which the separate corporate existence of Merger Sub shall cease
and Andrew shall continue as the surviving corporation, and (ii) no Seller
shall be required, as a condition to the consummation of any of the
transactions contemplated by the CommScope Merger Agreement, to obtain any
other parties’ written agreement to be liable for such Seller’s obligations
hereunder (including such Seller’s joint and several liability under Article XII
herein).


 


2.                                       Effect of Amendment; Entire
Agreement.  Except as
and to the extent expressly modified by this Amendment, the Original Agreement
shall remain in full force and effect in all respects.  The Original Agreement, as amended hereby,
contains the entire agreement of the Parties on the subject matter of the
Original Agreement and neither Purchaser nor Sellers shall have any rights or
obligations to each other except as explicitly provided for in the Original
Agreement, as amended hereby.  Each
reference to “hereof,” “herein,” “hereby,” and “this Agreement” in the Original
Agreement shall from and after the date hereof refer to the Original Agreement,
as amended hereby.  Notwithstanding
anything to the contrary herein, the date of the Original Agreement, as amended
hereby, shall in all instances remain as November 5, 2007, and references
in the Original Agreement to “the 


 

















 


date first above written,” “the
date of this Agreement,” and similar references shall continue to refer to November 5,
2007.


 


3.                                       Miscellaneous.  The construction, interpretation, and
performance of this Amendment shall be governed by the internal laws of
Illinois.  This Amendment may be executed
in one or more counterparts, each of which independently shall share the same
effect as if it were the original, and all of which taken together shall
constitute one and the same Amendment.


 


(Signature
Page Follows)


 


 

















 


IN WITNESS WHEREOF, the Parties have caused
this Amendment to be executed as of the date first written above.


 


	
   

  	
  ASC SIGNAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Bassem Mansour

  
	
   

  	
   

  	
  Name:

  	
  Bassem
  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
  Directors